Nordwall v. PHC-LAS Cruces, Inc. (960 F. Supp. 2d 1200, 2013)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant PHC-Las Cruces, Inc.’s Motion for Partial Summary Judgment on Plaintiffs Claim Under the Rehabilitation Act and Memorandum in Support, filed September 20, 2012 (Doc. 41)(“Motion for Summary Judgment”). The Court held a hearing on November 28, 2012. The primary issues are: (i) whether Plaintiff Bilye Nordwall’s cause of action under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, brought in her capacity as personal representative of her son, James Davis, deceased, survived J. Davis’ death; and (ii) whether PHC-Las Cruces, Inc. d/b/a Memorial Medical Center (“Memorial Medical”) intentionally discriminated against J. Davis by acting with deliberate indifference to a substantially likely violation of the Rehabilitation Act during J. Davis’ February, 2009, admission to Memorial Medical. The Court will grant the Motion for Summary Judgment. The Court concludes that the United States Court of Appeals for the Tenth Circuit would incorporate the applicable New Mexico law to determine whether Rehabilitation Act claims survive a claimant’s death. Because the Court concludes that the Tenth Circuit would look to whether an intentional tort claim abates at the time of the claimant’s death as the applicable New Mexico law, and because the Tenth Circuit has held that an intentional tort claim abates at the time of a claimant’s death, the Court concludes that J. Davis’ Rehabilitation Act claim abated at the time of his death. Accordingly the Court will grant summary judgment in favor of Memorial on this basis, and dismiss with prejudice B. Nordwall’s Rehabilitation Act claim. As an alternative basis, the Court will grant summary judgment in favor of Memorial Medical on B. Nordwall’s Rehabilitation Act claim, because B. Nordwall has not established a genuine issue of material fact whether Memorial Medical intentionally discriminated against J. Davis under § 504 of the Rehabilitation Act, and cannot, therefore, recover compensatory damages. She has failed to show Memorial Medical acted with deliberate indifference to J. Davis’ federally-protected rights, because there is no genuine issue of material act whether policymakers knew of a substantially likely violation to J. Davis’ rights under the Rehabilitation Act and then failed to act to prevent such a violation. Because no federal law claims remain after the Court dismisses the Rehabilitation Act claim, the Court declines to exercise supplementary jurisdiction over the state-law claims, and will remand the case to state court.

FACTUAL BACKGROUND

This case arises from the allegations of Bilye Nordwall, J. Davis’ mother, that Memorial Medical violated J. Davis’ rights under the Rehabilitation Act during his stay at Memorial Medical from February 7, to February 23, 2009. See First Amended Complaint ¶¶ 66-77, at 10-11, filed in state court on March 23, 2012, filed in federal court on April 24, 2012 (Doc. 1-l)(“Complaint”). Memorial Medical is a hospital located in Las Cruces, New Mexico. See Complaint ¶ 8, at 2 (setting forth this fact); Answer to First Amended Complaint ¶ 9, at 2 (Doc. 4)(“Answer”)(not controverting this fact).

As a result of an infection that occurred shortly after his birth, J. Davis became profoundly deaf. See Response to Motion for Partial Summary Judgment ¶ 15, at 4, filed October 19, 2012 (Doc. 47)(“MSJ Response”)(setting forth this fact); Defendant PHC-Las Cruces, Inc.’s Reply in Support of Motion for Partial Summary Judgment Regarding Plaintiffs’ Rehabilitation Act Claim at 2, filed November 9, 2012 (Doc. 53)(“Reply”)(not controverting this fact). J. Davis could not hear anything below the ninety decibel range. See MSJ Response ¶ 21, at 5 (setting forth this fact); Reply at 3 (not controverting this fact). Nonetheless, J. Davis communicated verbally to some degree. See Plaintiffs Supplemental Response to Motion for Partial Summary Judgment ¶ 6, at 2, filed January 22, 2013 (Doc. 61)(“Supplemental Response”)(stating that J. Davis’ verbal communication was limited, especially after he lost his teeth); Defendant PHC-Las Cruces, Inc.’s Sur Reply in Support of Its Motion for Partial Summary Judgment Regarding Plaintiffs’ Rehabilitation Act Claim ¶ 4, at 2, filed February 4, 2013 (Doc. 62)(“Surreply”)(not controverting this fact). Additionally, J. Davis used sign language, lip reading, and writing to communicate during his February, 2009, admission at Memorial Medical. See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). J. Davis’ stepfather, Carl Nordwall, understood J. Davis’ speech. See Deposition of Carl Nordwall at 24:15-16 (taken August 28, 2012), filed November 9, 2012 (Doc. 53-l)(“C. Nordwall Depo.”). See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). J. Davis had a good vocabulary for a deaf person. See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). Additionally, C. Nordwall stated that J. Davis was “perceptive in reading people’s face — or lips and faces, expressions, gestures, and all of that.” C. Nordwall Depo. 24:24-25:3. See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). Signing is referred to as “manual communication.” Deposition of Bilye Nordwall at 46:16-17 (taken August 27, 2012), filed November 19, 2012 (Doc. 47-l)(“B. Nordwall Depo”). J. Davis’ mother, B. Nordwall, is a trained signer who is familiar with three different types of sign. See MSJ Response ¶ 18, at 5 (setting forth this fact); Reply at 3 (not controverting this fact). American Sign Language (“ASL”) is grammatically different than English. See B. Nordwall Depo. at 46:18-20. J. Davis was most comfortable, in manual communication, with American Sign Language (“ASL”). See MSJ Response at ¶ 16 at 5 (setting forth this fact). As a signer, B. Nordwall communicates the substance of messages, whereas a certified interpreter translates conversations verbatim. See MSJ Response ¶ 18, at 5 (setting forth this fact); Reply at 3 (not controverting this fact).

B. Nordwall accompanied J. Davis to some of his medical appointments. See MSJ Response ¶ 22, at 5 (setting forth this fact). In her capacity as a signer, B. Nordwall could not translate anything medically technical. See MSJ Response ¶ 22, at 5 (setting forth this fact); Reply ¶ 7, at 3 (not controverting this fact). In general, interpreters are often necessary for deaf patients to understand treatment options and to obtain informed consent. See Supplemental Response ¶ 10, at 3 (setting forth this fact); Surreply at 4 (not controverting this fact). Before his February 2009 stay at Memorial Medical, J. Davis demonstrated an ability to communicate with healthcare providers in writing. See Motion for Summary Judgment ¶ 20, at 6 (setting forth this fact).

Memorial Medical admitted J. Davis on February 7, 2009, and discharged him February 23, 2009. See MSJ Response ¶ 23, at 5 (setting forth this fact); Reply at 3 (not controverting this fact). J. Davis suffered from chronic obstructive pulmonary disease, cor polmonae, pulmonary arterial hypertension, congestive heart failure, and Hepatitis C. See Motion for Summary Judgment ¶ 9, at 4 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). J. Davis required supplemental oxygen at all times. See Motion for Summary Judgment ¶¶ 10, at 4 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). J. Davis often refused to wear the non-re-breather oxygen mask. See Motion for Summary Judgment ¶¶ 11, at 4 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). As a result, J. Davis experienced life-threating oxygen deprivation. See Motion for Summary Judgment ¶¶ 12, at 5 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). Because of these symptoms, healthcare providers attempted to treat him with supplemental oxygen, and J. Davis was sometimes combative during his treatment at Memorial Medical. See Motion for Summary Judgment ¶¶ 13-14, at 4-5 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact).

When Memorial Medical admitted J. Davis in February, 2009, Memorial Medical had a policy regarding interpretive services for deaf patients. See Motion for Summary Judgment ¶ 17, at 5 (setting forth this fact); MSJ Response ¶ 10, at 4 (not controverting this fact). The Memorial Medical Center Administrative Policy and Procedure Manual, filed September 20, 2012 (Doc. 41-5)(“Administrative Policy and Procedure Manual”), addressed the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and interpreter services. Memorial Medical’s Administrative Policy and Procedure Manual required that Memorial Medical provide deaf patients with auxiliary aids. See Administrative Policy and Procedure Manual at 2; MSJ Response ¶ 39, at 8-9 (setting forth this fact); Reply at 4 (not controverting this fact). Memorial Medical possessed “low-tech communication aides,” including easy listening devices, communication boards, telecommunication devices for the deaf (“TDD”), a contact list of available area sign language interpreters, and televisions equipped with closed caption. Administrative Policy and Procedure Manual at 2. See Motion for Summary Judgment ¶¶ 24-26, at 7 (setting forth this fact); MSJ Response ¶ 10, at 4 (not controverting this fact). Furthermore, the Administrative Policy and Procedure Manual states: “Employees, including every staff member providing medical treatment or other services ... to hearing impaired patients are responsible for ensuring compliance with this policy and for accessing appropriate interpreter services.... ” Administrative Policy and Procedure Manual at 2. See MSJ Response ¶ 39, at 8-9 (setting forth this fact); Reply at 4 (not controverting this fact). Memorial Medical’s Administrative Policy and Procedure Manual indicated that the Administrator on Duty (“AOD”) could “assist in communication with deaf persons by determining availability of local resources” which included sign language interpreters, TDD aids, and low tech communication aids. Administrative Policy and Procedure Manual at 2. See Motion for Summary Judgment ¶ 21, at 6-7 (setting forth this fact); Response ¶ 10, at 4 (not contravening this fact).

Memorial Medical’s healthcare providers knew how to access interpreters for patients. See Motion for Summary Judgment ¶22, at 7 (setting forth this fact); MSJ Response ¶ 10, at 4 (not controverting this fact). Memorial Medical staff knew about additional auxiliary aids for deaf patients. See Surreply ¶ 6, at 3-4 (setting forth this fact). Even though Memorial Medical healthcare providers knew about these resources, Memorial Medical healthcare providers never called a qualified sign language interpreter for J. Davis. See MSJ Response ¶ 42, at 9 (setting forth this fact); Reply ¶ 15, at 4 (not controverting this fact). J. Davis and Memorial Medical healthcare providers communicated, instead, through verbal communication, writing, and family members who were able to sign ASL with J. Davis throughout his February 2009 hospitalization. See Motion for Summary Judgment ¶¶ 18-19, at 6 (setting forth this fact); Response at 4 (not controverting this fact).

Memorial Medical healthcare providers were trained to generally assess patients’ communication abilities. See Surreply ¶ 6, at 3 (setting forth this fact). Memorial Medical did not train AOD Ronald Wilson, R.N., however, in addressing deaf patients’ needs specifically. See Response ¶47, at 10 (setting forth this fact); Reply at 5 (not controverting this fact). As Memorial Medical’s Patient Advocate, Julie Abrams acted as a liaison between healthcare providers, patients, and their families. See Response ¶ 38, at 8 (setting forth this fact); Reply at 4 (not controverting this fact). One of Abrams’ responsibilities was promoting Memorial Medical’s policies to its staff. See Response ¶ 38, at 8 (setting forth this fact); Reply at 4 (not controverting this fact). Abrams did not know what the term “auxiliary aids” meant, or know whether Memorial Medical had a policy that measured deaf or hard-of-hearing patients’ communication abilities or needs.

Abrams did not have any training specifically dealing with deaf patients’ communication needs. See MSJ Response ¶ 47, at 10 (setting forth this fact); Reply at 5 (not controverting this fact). Memorial Medical healthcare providers, nevertheless, continually assessed J. Davis during his stay, including J. Davis’ communication ability. See Surreply ¶ 5 at 3 (setting forth this fact). Some healthcare providers did not document communication issues when interacting with J. Davis, while other healthcare providers noted communication issues.

On February 9, 2009, because J. Davis repeatedly refused to wear his non-rebreather oxygen mask and become combative with his healthcare providers, Memorial Medical healthcare providers sedated and restrained J. Davis to prevent harm from oxygen deprivation. See MSJ Response ¶ 30, at 6 (setting forth this fact); Reply ¶ 9, at 3 (not controverting this fact). The restraint lasted nine hours. See Surreply ¶8, at 4 (setting forth this fact). During J. Davis’ restraint, Memorial Medical also sedated him to the point that Wilson and J. Davis’ family members could not “arouse[]” J. Davis. See MSJ Response ¶ 33, at 7 (setting forth this fact); Reply at 4 (not controverting this fact). During J. Davis’ sedation, he could not communicate. Steve Davis, J. Davis’ brother and an employee at MMC who was an AOD, reported to Wilson that B. Nordwall was upset about J. Davis’ treatment. See MSJ Response ¶ 32, at 7 (setting forth this fact); Reply at 3 (not controverting this fact). See also Supplemental Response ¶ 12, at 3 (setting forth this fact); Surreply ¶ 8, at 4-5 (not controverting this fact). B. Nordwall, S. Davis, and Wilson met on February 9, 2009. See MSJ Response ¶ 33, at 7 (setting forth this fact); Reply ¶ 10, at 4 (not controverting this fact). They developed a care plan that prohibited J. Davis’ further sedation. See MSJ Response ¶ 33, at 7 (setting forth this fact); Reply ¶ 10, at 4 (not controverting this fact). The plan also enlisted the family’s help to communicate with J. Davis. See MSJ Response ¶33, at 9 (setting forth this fact). As a result of the meeting, Wilson posted a list of the family members’ contact information in J. Davis’ chart and also above J. Davis’ bed. See Motion for Summary Judgment ¶23, at 7 (setting forth this fact); MSJ Response ¶ 33, at 7 (not controverting this fact). Wilson instructed Memorial Medical healthcare professionals to contact family members if they were needed to calm or interpret for J. Davis. See Motion for Summary Judgment ¶ 24, at 7 (setting forth this fact); MSJ Response ¶ 10, at 4 (not controverting this fact). See also Reply ¶ 15, at 4 (setting forth this fact).

Wilson sent an electronic mail transmission relaying J. Davis’ family’s concerns to Abrams, Director of Nursing Ann DeBooy, and Risk Manager Dianne Gomez. See MSJ Response ¶ 37, at 8 (setting forth this fact); Reply at 4 (not controverting this fact). In the electronic mail transmission, Wilson stated:

[A]fter speaking with Mrs. Nordwall we came up with a plan, we posted [J. Davis’ family’s] contact numbers on the wall next to the patients bed and on the patients chart with orders to call them anytime day or night for any concern, the patient is deaf.... This morning I checked with Mrs. Nordwall and she said the plan did work, she was called and subsequently came in last night.

See Electronic Mail Message from Ronald Wilson to Julia Abrams (dated Feb. 10, 2009), filed on October 19, 2012 (Doc. 47-3)(“Davis Concern email”). On February 10, 2009, Dr. Sheer saw J. Davis. See MSJ Response ¶48, at 10 (setting forth this fact); Reply at 5 (not controverting this fact). J. Davis’ deaf girlfriend translated using sign language. See MSJ Response ¶ 48, at 10 (setting forth this fact); Reply at 5 (not controverting this fact). During a consultation on February 10, 2009, Dr. Kevin Sheer noted that J. Davis was deaf and that “he could not answer questions on a variety of questions and he is unable to read lips.” Memorial Medical Center Consultation (dated Feb. 10, 2009), filed October 19, 2009 (Doc. 47-7). See MSJ Response ¶ 48, at 10 (setting forth this fact); Reply at 5 (not controverting this fact).

J. Davis’ doctor ordered the administration of Geodon to relieve J. Davis’ anxiety. See Reply ¶ 11, at 4 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). Despite the care plan that Wilson and J. Davis’ family developed, the following evening, on February 10, 2009, a healthcare provider sedated J. Davis without contacting the J. Davis family. See MSJ Response ¶ 34, at 7 (setting forth this fact); Reply ¶ 11, at 4 (not controverting this fact).

After J. Davis’ sedation, another meeting followed on February 11, 2009, to ensure adherence to the plan. See MSJ Response ¶ 35, at 7 (setting forth this fact); Reply f 14, at 4 (not controverting this fact). J. Davis’ family informed Wilson that federal law requires Memorial Medical to provide an interpreter. See MSJ Response ¶ 36 at 8 (setting forth this fact); Reply at 4 (not controverting this fact). Sandra Williams, from the New Mexico Commission for the Deaf, attended this meeting, and provided Wilson and Abrams a list of certified interpreters in the Las Cruces area. See MSJ Response ¶ 41, at 9 (setting forth this fact); Reply ¶ 14, at 4 (not controverting this fact). After the meeting, Wilson posted a list of available area interpreters’ contact information in J. Davis’ chart and above J. Davis’ bed. See Motion for Summary Judgment ¶ 23, at 7 (setting forth this fact); MSJ Response ¶ 33, at 7 (not controverting this fact). Wilson instructed J. Davis’ family and Memorial Medical healthcare providers to call an interpreter if needed. See Motion for Summary Judgment ¶ 24, at 7 (setting forth this fact); MSJ Response ¶ 10, at 4 (not controverting this fact). See also Reply ¶ 10, at 4 (setting forth this fact). Despite these instructions, Memorial Medical administrators, MMC healthcare providers, J. Davis, and his family called an interpreter during J. Davis’ stay. See MSJ Response ¶ 42, at 9 (setting forth this fact); Reply ¶ 15, at 4 (not controverting this fact).

Abrams mailed B. Nordwall a Grievance Follow-Up Letter that reaffirmed the list of interpreters posted above J. Davis’ bed and in his chart. See Grievance Follow-up Letter at ¶ 6 at 1 (dated February 18, 2009), filed September 20, 2012 (Doc. 41-8); MSJ Response ¶ 46, at 10 (setting forth this fact); Reply at 5 (not controverting this fact). The Grievance Follow-up Letter indicates that “the nurses were instructed to contact the interpreters as needed to ensure that James’ primary communication preferences were met.” Grievance Follow-up Letter ¶ 6 at 1. See MSJ Response ¶ 46, at 10; (setting forth this fact); Reply at 5 (not controverting this fact).

S. Davis could sign English, but not ASL. See Supplemental Response ¶ 8 at 3 (setting forth this fact); Surreply at 3 (not controverting this fact). During J. Davis’ February, 2009 stay at Memorial Medical, J. Davis communicated to S. Davis: “I need sign language. I need to” — “I don’t understand. I need sign language.” S. Davis Depo. at 48:21-23. S. Davis stated: “I know this is ‘sign,’ and that’s ‘need,’ but I don’t know if that was what he was saying, ‘Need sign language.’ ” S. Davis Depo. at 49:1-3. S. Davis assumed J. Davis was asking for an interpreter. S. Davis Depo. at 49:3-6.

At some point during J. Davis’ admission to Memorial Medical, B. Nordwall and S. Davis “took over” J. Davis’ medical decision-making. Supplemental Response ¶ 11, at 3 (setting forth this fact); Surreply ¶ 7, at 4 (not controverting this fact).

Despite Memorial Medical’s administrative policy, the available resources for deaf patients, and meetings with J. Davis’ family, Memorial Medical did not use an interpreter or TDY to communicate with J. Davis. See Supplemental Response ¶ 4, at 2 (setting forth this fact); Surreply at 4 (not controverting this fact). Memorial Medical discharged J. Davis on February 23, 2009. See MSJ Response ¶ 23, at 5 (setting forth this fact); Reply at 3 (not controverting this fact). J. Davis did not want to return to Memorial Medical for treatment. See Supplemental Response ¶ 15, at 4 (setting forth this fact); Surreply at 6 (not controverting this fact). J. Davis died at his home on March 26, 2009. See Complaint ¶ 47, at 7 (setting forth this fact).

PROCEDURAL BACKGROUND

B. Nordwall filed her First Amended Complaint for ADA and Rehabilitation Act claims, the New Mexico Wrongful Death Act, and the New Mexico Unfair Trade Practices Act in the Third Judicial District Court for the State of New Mexico on March 23, 2012, bringing suit against Memorial Medical (Doc. 1-1)(“Amended Complaint”). In the Amended Complaint, B. Nordwall alleged five counts against Memorial Medical, including: Count I — Discrimination on the Basis of a Disability in Violation of Title III of the ADA, 42 U.S.C. §§ 12182-12189; Count II — Discrimination on the Basis of a Disability in Violation of the Rehabilitation Act, 29 U.S.C. § 794; Count III — Negligence Resulting in Harm and Wrongful Death; Count IV— Negligent Training and Supervision; and Count V — Violation of New Mexico Unfair Trade Practices Act, NMSA 1978, § 57-12-1. See Amended Complaint at 6-15. On April 24, 2012, Memorial Medical removed the case to federal court and demanded a jury trial. See Notice of Removal of Defendant PCH-Las Cruces, Inc. d/b/a Memorial Medical Center and Demand for Jury Trial at 1 (Doc. 1). Memorial Medical, on May 1, 2012, filed their Motion to Dismiss Plaintiffs Americans with Disabilities Act Claim Pursuant to Federal Rule of Civil Procedure 12(B)(6) and a Motion to Dismiss Plaintiffs Unfair Trade Practice Act Claim Pursuant to Federal Rule of Civil Procedure 12(B)(6). See Motion to Dismiss Plaintiffs Americans with Disabilities Act Claim (Doc. 6); Motion to Dismiss Plaintiffs Unfair Trade Practice Act Claim (Doc. 7). On May 31, 2012, B. Nordwall and Memorial Medical filed a Stipulated Dismissal (Doc. 22), agreeing to dismiss Count I with prejudice and Count V without prejudice. See Stipulated Dismissal 1-2. This case was assigned to the Court on May 18, 2012. See Notice (Doc. 14).

On September 20, 2012, Memorial Medical filed its Motion for Summary Judgment requesting that the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, enter partial summary judgment in its favor on B. Nordwall’s Rehabilitation Act claim. To support its argument in favor of summary judgment, Memorial Medical argues that B. Nordwall’s claim fails because a Rehabilitation Act claim does not survive a disabled claimant’s death. See Motion for Summary Judgment at 14. Memorial Medical acknowledges that ordinarily, “[t]he question of survival of an action grounded in federal law is governed by federal common law when ... there is no expression of contrary intent.” Motion for Summary Judgment at 14 (citing Smith v. Dep’t of Human Servs., 876 F.2d 832, 834 (10th Cir.1989) (internal citations omitted)). Memorial Medical argues in the absence of such a provision in civil rights eases, that “federal law will incorporate the appropriate state law unless that law ‘is inconsistent with the Constitution and laws of the United States.’” Motion for Summary Judgment at 14 (citing Bennett v. Tucker, 827 F.2d 63, 67 (7th Cir.1987) (quoting 42 U.S.C. § 1988)). Memorial Medical argues that, absent a federal civil rights law’s express provision for a claim surviving the claimant’s death, state law can cause abatement of the federal claim. See Motion for Summary Judgment at 14 (citing Robertson v. Wegmann, 436 U.S. at 590, 98 S.Ct. 1991).

Memorial Medical asserts that, because the Rehabilitation Act does not contain any provision regarding the survival of a deceased individual’s claim, it is appropriate to look to New Mexico law to answer the question of survivability. See Motion for Summary Judgment at 14. Memorial Medical argues that New Mexico law provides survival in limited causes of actions at common law, including mesne profits, an injury to real or personal estate, deceit or fraud, and wrongful death. See Motion for Summary Judgment at 15 (citing N.M.S.A 1978 § 37-2-1.) Memorial Medical asserts that New Mexico law provides neither explicitly nor implicitly for the survival of a Rehabilitation Act claim. See Motion for Summary Judgment at 15. Memorial Medical argues that a Rehabilitation Act claim is neither a personal injury claim nor a wrongful death claim. Memorial Medical argues that because New Mexico statute does not provide survival of B. Nordwall’s Rehabilitation Act claim, it may not survive J. Davis’ death.

In addition, Memorial Medical asserts that, at common law, New Mexico allows causes of action for negligence to survive because damages for negligence are intended to be compensatory. See Motion for Summary Judgment at 16 (citing Rodgers v. Ferguson, 89 N.M. 688, 556 P.2d 844 (N.M.Ct.App.1976)). Memorial Medical contrasts this causes of actions for intentional torts under New Mexico common law, which do not survive, because the damages are intended to be punitive. See Motion for Summary Judgment at 16 (citing Oliveros v. Mitchell, 449 F.3d 1091, 1094-95 (10th Cir.2006)). Memorial Medical argues that because the Rehabilitation Act standard of proof requires a showing of intentional discrimination, a plaintiff must “show the statutory equivalent of an intentional tort in order to recover.” Motion for Summary Judgment at 16. Memorial Medical argues that, after applying the Tenth Circuit’s holding that intentional torts do not survive the claimant’s death, B. Nordwall’s Rehabilitation Act claim should not survive J. Davis’ death. See Motion for Summary Judgment at 16-17 (citing Oliveros v. Mitchell, 449 F.3d at 1094-95).

Additionally, Memorial Medical argues that no dispute of material fact exists to demonstrate Memorial Medical acted with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. See Motion for Summary Judgment at 12. Memorial Medical argues that, in the Rehabilitation Act context, deliberate indifference means that “the policy maker must have acted with ‘at least deliberate indifference to the strong likelihood [of] a violation of federally protected rights ... from the implementation of the [challenged] policy ... [or] custom.’ ” Motion for Summary Judgment at 10 (citing Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir.1998))(internal quotations and citations omitted, brackets in original). Memorial Medical argues that, even though B. Nordwall requested a sign language interpreter for J. Davis, deliberate indifference to J. Davis’ rights under the Rehabilitation Act requires more than a hospital’s failure to provide a sign language interpreter. See Motion for Summary Judgment at 10. Memorial Medical maintains that its policies, auxiliary aids, and meetings with J. Davis’ family preclude finding that Memorial Medical acted with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. See Motion for Summary Judgment at 12. Memorial Medical relies on an unpublished opinion from the United States Court of Appeals for the Eleventh Circuit and from the United States Court of Appeals for the Second Circuit where the courts found the defendant hospitals did not act with deliberate indifference to deaf patients’ rights under the Rehabilitation Act. First, in Saltzman v. Board of Commissioners of the North Broward Hospital District, 239 Fed.Appx. 484 (11th Cir.2007) (per curiam), the court granted summary judgment on a Rehabilitation Act claim when the hospital had a policy and auxiliary aids in place, but, despite the patient and his family’s multiple requests, the hospital failed to secure an interpreter. See 239 FedAppx. at 485. In Freydel v. New York Hospital, 242 F.3d 365, 2000 WL 1836755 (2d Cir.2000) (unpublished table decision), the court granted summary judgment after finding the hospital did not act with deliberate indifference to the deaf patient’s Rehabilitation Act rights, even though the deaf patient’s family filed suit for injunctive relief before the hospital provided the patient a Russian sign language interpreter. See 2000 WL 1836755 at *4.

Memorial Medical argues that this case is similar to Saltzman v. Board of Commissioners of the North Broward Hospital District and Freydel v. New York Hospital, and relies on the proposition that hospitals with a policy, procedure, and auxiliary aids for deaf patients do not act with deliberate indifference to a patient’s Rehabilitation Act rights even when the hospital imperfectly accommodates a deaf patient. See Motion for Summary Judgment at 11. Memorial Medical argues that, like each of those hospitals, it too had a policy and auxiliary aids for deaf patients. See Motion for Summary Judgment at 12-13. Memorial Medical argues that it followed its policy when it provided J. Davis with access to interpreter contact information, and a pen and paper to communicate, and instructed both healthcare providers and family members to call an interpreter if needed. See Motion for Summary Judgment at 13. Memorial Medical asserts that it had taken “significant steps to provide communication resources to deaf and hard of hearing patients” well before J. Davis’ family lodged any complaints about interpreter availability. Motion for Summary Judgment at 13. Memorial Medical argues that, even if it failed to execute its policy perfectly, like the defendant hospitals in Saltzman v. Board of Commissioners of the North Broward Hospital District and Freydel v. New York Hospital, such failure does not rise to the level of deliberate indifference to a patients’ Rehabilitation Act rights.

B. Nordwall filed her Response to the Motion for Summary Judgment on November 9, 2012, asking the Court to deny Memorial Medical’s Motion for Summary Judgment. See MSJ Response at 2. B. Nordwall argues that a Rehabilitation Act claim survives a disabled claimant’s death. See MSJ Response at 2. B. Nordwall asserts that a Rehabilitation Act claim is not equivalent to an intentional tort. See MSJ Response at 2 (citing Oliveros v. Mitchell, 449 F.3d at 1094-95). B. Nordwall asserts that Memorial Medical incorrectly equates a Rehabilitation Act claim and a § 1983 excessive force claim. See MSJ Response at 2. B. Nordwall argues that the Rehabilitation Act is “more remedial than penal in nature.” MSJ Response at 2. B. Nordwall asserts that neither New Mexico law nor the Tenth Circuit preclude a claim under the Rehabilitation Act, brought by a personal representative after a claimant’s death. See MSJ Response at 2-3. B. Nordwall argues that Memorial Medical “gets a free pass” and “benefits from [J. Davis’] death” if the Rehabilitation Act claim does not survive J. Davis’ death. Motion for Summary Judgment at 19. B. Nordwall turns to ADA claims in support of her contention, pointing out that courts analyze ADA claims like personal injury claims and look to state survival statutes to determine whether such claims survive a claimant’s death. See MSJ Response at 20 (citing Allred v. Solaray, Inc., 971 F.Supp. 1394, 1397 (D.Utah 1997); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547 (7th Cir.1996)). In addition, B. Nordwall states that in Wagner v. Tex. A & M Univ., 939 F.Supp. 1297, 1311 (S.D.Tex. 1996), the United States District Court for the Southern District of Texas found that “the most appropriate statute of limitations to borrow for § 504 of the Rehabilitation Act of 1973 is the one ‘governing personal injury suits.’ ” (internal citations omitted). MSJ Response at 20. B. Nordwall argues that applying the Wagner v. Texas A&M University analysis “leads to the conclusion that the Rehabilitation Claim survives because personal injury claims survive under New Mexico’s survival statute, N.M. Stat. Ann. § 37-2-1.” MSJ Response at 20.

Next, B. Nordwall counters Memorial Medical’s argument that B. Nordwall failed to allege a personal injury claim. See MSJ Response at 20. B. Nordwall asserts that reasonable jurors could see Memorial Medical’s sedation and restraint of J. Davis as causing physical and emotional pain as a personal injury claim basis. See MSJ Response at 20-21. B. Nordwall asserts that a personal representative may pursue claims for pain and suffering that precede a claimant’s death. See MSJ Response at 21 (citing Stang v. Hertz Corp., 81 N.M. 69, 77, 463 P.2d 45, 53 (1969)).

B. Nordwall points out that Memorial Medical does not dispute that B. Nordwall meets the elements of a prima facie claim of discrimination under the Rehabilitation Act. See MSJ Response at 13. B. Nordwall contends that there is a genuine issue of material fact whether Memorial Medical acted, contrary to the Rehabilitation Act’s provisions, with deliberate indifference toward J. Davis’ rights under the Rehabilitation Act. See MSJ Response at 13. B. Nordwall argues that 45 C.F.R. § 84.52(d) defines Memorial Medical’s Rehabilitation Act obligations, providing that certain healthcare providers who receive federal funding “shall provide appropriate auxiliary aids to persons with impaired sensory, manual or speaking skills where necessary to afford such persons an equal opportunity to benefit from the service” and also that such auxiliary aids “may include brailled and taped material, interpreters and other aids for person with impaired hearing or vision.”' MSJ Response at 14 (quoting 45 C.F.R. § 84.52(d))(internal quotations omitted). B. Nordwall contends that, despite these federal requirements and the requests of J. Davis’ family, Memorial Medical administrators did not adequately implement the policy or make auxiliary aids available to J. Davis during his hospitalization. See MSJ Response at 16. B. Nordwall argues that Memorial Medical was “required” to provide these aids. See MSJ Response at 14 (emphasis in original).

B. Nordwall argues that Memorial Medical’s reliance on J. Davis’ family and girlfriend to serve as interpreters, instead of securing a certified ASL interpreter, demonstrates that Memorial Medical acted with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. See MSJ Response at 15. B. Nordwall relies on Ulibarri v. City and County of Denver, 742 F.Supp.2d 1192 (D.Colo.2010), for the proposition that intentional discrimination for the purposes of the Rehabilitation Act can occur if a deaf individual does not have the same opportunity to access services. See MSJ Response at 17.’ The United States District Court of Colorado dismissed multiple claims, but let survive a claim alleging that, during the plaintiffs detainment, because an issue of fact existed whether the deaf detainee' was denied equal access to jail services as a result of inadequate detention center staff training, a jury might define as “gaps in the deputies knowledge of how best to communicate with deaf inmates as well as how and under what circumstances to obtain an interpreter.” MSJ Response at 17 (quoting Ulibarri v. City and Cnty. of Denver, 742 F.Supp.2d at 1217). B. Nordwall cites to four additional cases, although she does not discuss these cases: Salinas v. City of New Braunfels, 557 F.Supp.2d 777 (W.D.Tex.2008); Davis v. Flexman, 109 F.Supp.2d 776 (S.D.Ohio 1999); Mayberry v. Von Valtier, 843 F.Supp. 1160 (E.D.Mich.1994); McCullum v. Orlando Regional Healthcare Syst., Inc., 2012 WL 207025 (M.D.Fla.2012). MSJ Response at 17.

Memorial Medical filed its Reply on November 9, 2012. Memorial Medical in its Reply reiterates that, in Oliveros v. Mitchell, the Tenth Circuit held that intentional torts do not survive a claimant’s death. See Reply at 9 (citing Oliveros v. Mitchell, 449 F.3d at 1091). Memorial Medical asserts that B. Nordwall fails to cite a single federal case holding that Rehabilitation Act claims do survive a claimant’s death. See Reply at 9. Memorial Medical returns to the Tenth Circuit’s reasoning of Oliveros v. Mitchell, where the Tenth Circuit held that § 1983 claims are necessarily premised on a defendant’s intentional act, and those claims do not survive a claimant’s death. See Reply at 10 (citing Oliveros v. Mitchell, 449 F.3d at 1095). Memorial Medical argues that B. Nordwall’s position is incongruent when she argues — despite the intentional discrimination standard for Rehabilitation Act claims — that a Rehabilitation Act claim is not akin to an intentional tort. See Reply at 9. Memorial Medical argues that the reasoning in Oliveros v. Mitchell should apply here, so that Rehabilitation Act claims do not survive a disabled claimant’s death. See Reply at 10.

In addition, Memorial Medical disputes B. Nordwall’s interpretation of the cases she cites in support of her position. See Reply at 11. Memorial Medical argues that Soigner v. American Board of Plastic Surgery is not on point, because it does not deal with survival of claims, but deals with the ADA’s statute of limitations. See Reply at 11 (citing to Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d at 550-51.) Memorial Medical asserts that B. Nordwall’s reliance on Wagner v. Texas A & M University for the proposition that personal injury statutes should govern Rehabilitation Act claims is “simply wrong.” Reply at 11. Memorial Medical argues that Allred v. Solaray, Inc., Soigner v. American Board of Plastic Surgery, and Wagner v. Texas A & M University do not deal with Rehabilitation Act claims or survival of those claims. See Reply at 11.

Memorial Medical also argues that Wilson v. Garcia establishes only a uniform statute of limitations for civil rights claims, not that all civil rights claims are to be treated like personal injury claims. See Reply at 11-12 (citing Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)). Memorial Medical argues that, in Wilson v. Garcia, the Supreme Court of the United States held that courts examining § 1983 claims should use state statute of limitations for personal injury actions. See Reply at 11. It points out that the Tenth Circuit decided Oliveros v. Mitchell after Wilson v. Garcia, and held that intentional torts do not survive a claimant’s death under New Mexico law. See Reply at 11. Memorial Medical asserts that the Tenth Circuit’s holding in Oliveros v. Mitchell, in light of Wilson v. Garcia’s existence, demonstrates that courts should not treat all civil rights cases like personal injury cases. See Reply at 12.

Memorial Medical asserts that B. Nordwall “seems to confuse” the Rehabilitation Act’s standard, intentional discrimination, with negligence or that “communications with J. Davis were effective.” Reply at 1. Memorial Medical also argues that Salinas v. City of New Braunfels is not on point, because that case involved a defendant who refused to provide interpretative services, whereas Memorial Medical never denied interpretive services. See Reply at 6. Similarly, Memorial Medical argues that, in Davis v. Flexman, there was no issue of deliberate indifference to a deaf person’s Rehabilitation Act rights and so the case is “inapplicable.” Reply at 6. Next, Memorial Medical asserts that Mayberry v. Von Valuer focused on whether enough evidence existed that the plaintiff was denied an interpreter for future medical treatment, which is not the issue in B. Nordwall’s claim. See Reply at 7. And in response to B. Nordwall’s cite to McCullum v. Orlando Regional Healthcare System, Inc., Memorial Medical argues that the 12(b)(6) motion, which rests solely on the complaint, is not an appropriate comparison to a motion for summary judgment. See Reply at 7-8. Finally, Memorial Medical argues that B. Nordwall fails to demonstrate that it acted with deliberate indifference to J. Davis’ rights under the Rehabilitation Act.

On November 28, 2012, the Court held a hearing on the Motion for Summary Judgment. Memorial Medical acknowledged that the Rehabilitation Act does not address whether claims survive a deceased claimant. See Transcript of Hearing at 51:19-23 (taken November 28, 2012)(Oer-tle)(“Tr.”). In addition, Memorial Medical conceded that there is no clear New Mexico or Tenth Circuit case law addressing a Rehabilitation Act claim’s survivability. See Tr. at 51:8-10 (Oertle). Memorial Medical asserted that the Supreme Court precedent dictates that absent any conflict with congressional intent, the state law controls survivability. See Tr. at 51:23-52:5 (Oertle). In addition, Memorial Medical argued that New Mexico case law clearly indicates that “intentional tort claims would not survive under New Mexico survival statutes even to the extent that the survival statutes otherwise allow personal injury actions to survive the death of the would-be plaintiff.” Tr. at 51:11-18 (Oertle). Memorial Medical argued that, for B. Nordwall to prove her case, she must prove intentional discrimination, which Memorial Medical argues is like an intentional tort. See Tr. at 53:23-54:17. Memorial Medical asserted that Oliveros v. Mitchell’s holding is analogous to intentional discrimination in Rehabilitation Act claims, and that claims should therefore also not survive. See Tr. at 53:7-22.

The Court asked whether Title VII claims and ADA claims survive the claimant’s death in New Mexico or the Tenth Circuit. See Tr. at 55:8-10 (Court). Memorial Medical answered that it did not find any Tenth Circuit law addressing that issue. See Tr. at 55:11-12 (Oertle). Memorial Medical, however, answered that Allred v. Solaray, Inc., a case arising in the District Court of Utah, concluded that ADA claims cannot survive unless there is a need for injunctive relief. See Tr. at 55:12-20 (Oertle).

B. Nordwall argued that Oliveros v. Mitchell is not on point. See Tr. at 56:5-6 (Youngers). B. Nordwall argued that the holding in Oliveros v. Mitchell is limited to excessive use of force, which B. Nordwall concedes is an intentional tort, but that excessive use of force and discrimination are not sufficiently analogous for the Oliveros v. Mitchell precedent to apply here and to extinguish the Rehabilitation Act claim. See Tr. at 56:7-17 (Youngers). B. Nordwall argued instead that, because the Rehabilitation Act is silent on survivability, it is appropriate to turn to state law to determine survivability. See Tr. at 56:18-22 (Youngers). She asserted that both New Mexico’s survivor statute and Stang v. Hertz Corporation allow claims for personal injuries to survive death. See Tr. at 56:18-22 (Youngers). The correct analysis, B. Nordwall argued, is whether a Rehabilitation Act claim is more like the excessive-force intentional tort claim in Oliveros v. Mitchell, or whether the Rehabilitation Act claim is more like the personal injury claim in Stang v. Hertz Corporation. See Tr. at 56:22-25 (Youngers). B. Nordwall pointed out that the Seventh Circuit observed in Soigner v. American Board of Plastic Surgery that an ADA claim is best characterized as one for personal injury. See Tr. at 57:19-25 (Youngers). B. Nordwall also cited to the Court for the first time Hickey v. Irving Independent School District, 976 F.2d 980 (5th Cir.1992), for the proposition that “claims for discrimination are essentially claims for personal injury.” Tr. at 58:1-3 (Youngers). In addition, B. Nordwall introduced Doukas v. Metropolitan Life Insurance Company, 882 F.Supp. 1197 (D.N.H.1995) which “concludes a claim for discrimination brought under the ADA is best characterized as a claim for personal injury.” Tr. at 58:3-7 (Youngers). B. Nordwall argued that Wagner v. Texas A & M University stands for the proposition a Rehabilitation Act’s statute of limitations is borrowed from personal injury suits. See Tr. at 58:7-11 (Youngers).

B. Nordwall argued that Title VII, ADA, and Rehabilitation Act claims are all remedial, whereas § 1983 excessive force claims are punitive. See Tr. at 58:17-20. This distinction matters, B. Nordwall argued, because if ADA and Rehabilitation Act claims did not survive a claimant’s death, then the statute’s remedial purpose would be “totally gutted,” because the hospital would have no incentive to follow the law if the claimant’s death was imminent. Tr. at 58:21-59:2 (Youngers). She asserted that such an outcome would be counter to the passage of the acts. See Tr. at 58:21-59:2 (Youngers). The Court noted that the policy side is “tough,” because, in § 1983 claims, a person’s claim does not survive death. Tr. 59:5-7 (Court). B. Nordwall agreed, and stated that the policy is secondary, after noting that other courts have found that ADA, Rehabilitation Act, and Title VII claims are similar to personal injury cases. See Tr. at 59:12-17 (Youngers).

The Court noted that for many years in New Mexico, § 1983 claims did not have a statute of limitations, so courts looked to other statutes of limitation to find a suitable statute of limitations for § 1983 claims. See Tr. at 59:18-23 (Court). The Court asked whether the Rehabilitation Act has a statute of limitations. See Tr. at 59:24-25 (Court). B. Nordwall answered that the Rehabilitation Act does not have a statute of limitations, which necessitates turning to state laws. See Tr. at 60:1^4 (Youngers). The Court asked whether the cases to which B. Nordwall cited referred to a statute of limitations or survivability. See Tr. at 60:5-8 (Court). B. Nordwall replied that the cases were about survivability, but if there were not a statute of limitations provision, they would also look to state law. See Tr. at 60:9-11 (Youngers). The Court asked whether New Mexico courts or the Tenth Circuit looked at New Mexico’s available statute of limitations to determine which applies for Rehabilitation Act claims. See Tr. at 60: 12-15 (Court). B. Nordwall replied that she had not researched the area, but that she speculates that a § 1983 statute of limitations applies. See Tr. at 60:16-22 (Youngers). The Court asked what reasoning would limit the Tenth Circuit survivability rule to excessive force cases only, instead of applying it to other § 1983 claims. See Tr. at 60:23-25 (Court). B. Nordwall replied that she was unsure whether Oliveros v. Mitchell could be read as “expressly deciding other issues.” Tr. at 61:6-9 (Youngers). B. Nordwall informed the Court that, in New Mexico, a Wrongful Death Act claim that a personal representative brought under § 1983 was successful when the standard was the guards’ deliberate indifference and not excessive force. See Tr. at 61:10-62:1 (Youngers).

Memorial Medical asserted that B. Nordwall’s characterization that both Soigner v. American Board of Plastic Surgery and Wagner v. Texas A & M University addressed survivability is misplaced. See Tr. at 64:2-7 (Oertle). Memorial Medical argued emphatically that those cases, like many civil rights cases, discuss the appropriate statute of limitations and adopt state personal injury statutes of limitation. See Tr. at 64:8-15. Memorial Medical argued that Wilson v. Garcia’s holding established a state’s personal injury statute of limitations as the standard for civil rights cases. See Tr. at 64:22-65:2 (Oertle). Memorial Medical acknowledged that whether a Rehabilitation Act claims survives the death of a disabled claimant is a novel issue with little case in the Tenth-Circuit. See Tr. 65:19-24. Memorial Medical points to Oliveros v. Mitchell, the Tenth Circuit’s decision that intentional torts would not survive a claimant’s death. See Tr. at 64:22-65:2 (Oertle). Memorial Medical argues that the Rehabilitation Act requires a level of deliberateness, which is akin to an intentional tort. See Tr. at 65:25-66:4. (Oertle) Additionally, Memorial Medical argued that Wilson v. Garcia established only that a state’s personal injury statutes of limitation should be applied to federal civil rights claims when the federal law was silent, not that federal claims are to be treated like personal injury claims. See Tr. at 65:10-12 (Oertle).

The Court asked Memorial Medical the reasoning that supported a federal statute adopting state law survivability. See Tr. at 66:13-20 (Court). Memorial Medical answered that Smith v. Department of Human Services, 876 F.2d 832 (10th Cir. 1989) stands for the proposition that federal statutory body from which the claim arises controls the statute of limitations, but that, if that federal statutory body is silent, it is appropriate to look to the state law for an analogous statute of limitations. See Tr. at 66:21-67:5 (Oertle). It asserted that the Wilson v. Garcia’s holding provided uniformity by establishing the state’s personal injury statute of limitations. See Tr. at 66:12-16 (Oertle). Memorial Medical also asserted that the Tenth Circuit, in Oliveros v. Mitchell, applied the Smith v. Department of Human Services framework, first looking to the federal law for a survivability statute, and, because there was none, the Tenth Circuit turned to state laws.. See Tr. at 66:17-21 (Oertle). Memorial Medical argued that, because New Mexico state law does not allow intentional torts to survive a claimant’s death, the Rehabilitation Act claim should not survive J. Davis’ death. See Tr. at 66:22-68-2 (Oertle).

Next, Memorial Medical argued that, under the Rehabilitation Act, B. Nordwall must demonstrate that Memorial Medical’s failure to provide J. Davis an interpreter is deliberate indifference, not mere negligence, to J. Davis’ rights under the Rehabilitation Act. Tr. at 12:10-19. Memorial Medical further argued that its administration put policies and resources in place for accommodating deaf patients, including auxiliary aids and an internal list of sign language interpreters. See Tr. at 18:4-8 (Oertle). Memorial Medical argued that it acted to ensure J. Davis’ rights were not violated when Wilson met with B. Nordwall and S. Davis and when Abrams sent a follow-up letter to B. Nordwall. See Tr. at 18:8-24 (Oertle). B. Nordwall countered that the question is not whether Memorial Medical had a policy and equipment in place for dealing with deaf patients, but whether Memorial Medical followed its own policy to afford J. Davis equal access to care. See Tr. at 28:24-29:2 (Youngers). B. Nordwall argued that Memorial Medical did not do enough to ensure that J. Davis had adequate means of communication. See Tr. at 31:3-13 (Youngers). The Court asked B. Nordwall if that was a question of negligence, rather than deliberate indifference to J. Davis’ rights under the Rehabilitation Act. See Tr. at 31:14-20 (Court). B. Nordwall responded that, until the family “stomp[ed] and jump[ed] up and down,” Memorial Medical acted with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. Tr. at 34:9-19 (Youngers).

The Court asked B. Nordwall whether the Rehabilitation Act’s deliberate indifference standard differs from the Eighth Amendment to the United States Constitution deliberate indifference standard. See Tr. at 26:16-26 (Court). Additionally, the Court asked both parties whether, if the Rehabilitation Act claim fails, remand back to state court is appropriate. See Tr. at 63:2-5 (Court). Both parties conceded that remand to state court is appropriate if the Rehabilitation Act Claim fails. See Tr. at 63:6-8 (Youngers); Tr. at 63:17-24 (Oertle).

On January 22, 2013, B. Nordwall filed the Plaintiffs Supplemental Response to Motion for Partial Summary Judgment. B. Nordwall argues that § 504 of the Rehabilitation Act and 45 C.F.R § 84.52(d) compel Memorial Medical to provide deaf patients services “equal to and effective as” hearing patients. Supplemental Response at 5 (quoting 45 C.F.R § 84.52(a)(2, 3)). B. Nordwall argues that, although Memorial Medical had policies and procedures to accommodate deaf patients, Memorial Medical employees were “remarkably ignorant” to deaf patients’ needs. Supplemental Response at 8. Next, B. Nordwall states that this case is analogous to Ulibarri v. City and County of Denver, where that court found questions of fact regarding the adequacy of staff training and knowledge regarding communication strategies and assistive devices available for deaf detainees. See Supplemental Response at 8 (citing Ulibarri v. City and Cnty. of Denver, 742 F.Supp.2d at 1217). Lastly, B. Nordwall argues that neither hospital in Saltzman v. Board of Commissioners of the North Broward Hospital District and Freydel v. New York Hospital restrained a patient as a result of a communication problem, but Memorial Medical restrained J. Davis.

Following B. Nordwall’s Supplemental Response, Memorial Medical filed the Surreply on January 22, 2013. Memorial Medical relies on two additional cases. See Surreply at 7-10. First, in Bircoll v. Miami-Dade County, 410 F.Supp.2d 1280 (S.D.Fla.2006) aff'd, 480 F.3d 1072 (11th Cir.2007), the United States District Court for the Southern District of Florida found that county officials did not act with deliberate indifference to the deaf arrestee’s rights under the Rehabilitation Act when police, without ever using an ASL interpreter, arrested a deaf motorist for driving under the influence, processed him, and placed him in solitary confinement. The driver alleged that, during his arrest, processing, and placement in solitary confinement, county officials intentionally discriminated against him, contrary to the ADA and to the Rehabilitation Act. See Surreply at 7-8 (citing Bircoll v. Miami-Dade County, 410 F.Supp.2d at 1286-1287). The district court, however, held that the officers who booked and processed the deaf arrestee did not act with deliberate indifference to his rights under the Rehabilitation Act, because the county officials believed their communication was effective. 410 F.Supp.2d at 1285-1286. Next, Memorial Medical refers to Constance v. State University of New York Health Science Center at Syracuse, 166 F.Supp.2d 663, 668 (N.D.N.Y.2001), where the United States District Court for the Northern District of New York found that the hospital did not act with deliberate indifference to the deaf patient’s Rehabilitation Act rights when the hospital had a policy addressing and auxiliary aids to accommodate deaf patients. See Surreply at 8. The standard for the Rehabilitation Act, Memorial Medical reiterates, is that Memorial Medical must have acted with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. See Surreply at 10. In addition, Memorial Medical asserts that other factors — such as B. Nordwall’s belief that the pen and paper it provided J. Davis was an insufficient auxiliary aid, that Memorial Medical restrained and sedated J. Davis, and that Memorial Medical did not act with “sufficient alacrity” in providing an interpreter — does not show Memorial Medical acted with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. Surreply at 10.

Memorial Medical argues that Memorial Medical healthcare providers, like the providers in Bircoll v. Miami-Dade County and Constance v. State University of New York Health Science Center at Syracuse, believed their communications with J. Davis were effective and thus did not act with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. See Surreply at 9. In addition, Memorial Medical rebuts B. Nordwall’s contention that J. Davis’ restraint and sedation altered the care and treatment that Memorial Medical provided J. Davis. See Surreply at 10. Memorial Medical instead asserts that it acted in good faith, that communication with J. Davis was effective, and, therefore, that Memorial Medical did not act with deliberate indifference to J. Davis’ rights under the Rehabilitation Act. See Surreply at 10-11.

LAW REGARDING SUMMARY JUDGMENT

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party may not rest upon mere allegations and denials in the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing Fed. R.Civ.P. 56(e)). An issue of fact is “genuine” if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Unsupported assertions or conjecture as to factual disputes are not enough to survive summary judgment. See Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.1988). The Court may consider only admissible evidence when ruling on a motion for summary judgment. See World of Sleep, Inc. v. La-Z-Boy Chair, Co., 756 F.2d 1467, 1474 (10th Cir.1985) (citing Fed. R.Civ.P. 56(e)).

If a defendant seeks summary judgment, the defendant has the “initial burden to show that there is an absence of evidence to support the nonmoving party’s case.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir.2000) (internal quotations omitted)(quoting Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995)). Upon meeting that burden, the burden shifts to the plaintiff to “identify specific facts that show the existence of a genuine issue of material fact.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d at 1164 (citations and internal quotations omitted). The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotations omitted). The plaintiff, in opposing the motion, “must present sufficient evidence in specific, factual form for a jury to return a verdict in that party’s favor.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d at 1164 (citations and internal quotations omitted). The mere existence of a scintilla of evidence in support of the plaintiffs position is not sufficient; there must be evidence on which the fact-finder could reasonably find for the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505.

RELEVANT LAW REGARDING THE REHABILITATION ACT

Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, states: “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794. The United States Department of Health and Human Services enacted regulations “to effectuate § 504 of the Rehabilitation Act,” which outline the federally funded health, welfare, and social services providers’ accommodations for disabled individuals. 45 C.F.R. Part 84.1. In Alexander v. Choate, 469 U.S. 287, 304, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the Supreme Court noted that these regulations provide “an important source of guidance on the meaning of § 504.” 469 U.S. at 304, 105 S.Ct. 712. Importantly, these regulations describe the funding recipient’s obligation to the hearing impaired and deaf:

(1) A recipient to which this subpart applies that employs fifteen or more persons shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to