Ituah v. Austin State Hospital ( 2023 )

Case: 22-50305 Document: 00516736708 Page: 1 Date Filed: 05/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 3, 2023
No. 22-50305 Lyle W. Cayce
Clerk
Anisha H. Ituah, by her Guardian, Angela McKay, on behalf of
herself and those similarly situated,
Plaintiff—Appellant,
versus
Austin State Hospital; Catherine Nottebart; Stacey
Thompson,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-11
Before Graves, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Anish Ituah, an intellectually disabled woman, claimed she was
sexually assaulted by a geriatric male patient, A.M., in the late evening or
early morning of January 7–8, 2016, while in her room at the Austin State
Hospital (“ASH”), where she was involuntarily committed. A report by the
Texas Department of Family and Protective Services concluded A.M.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50305
mistakenly entered Ituah’s room in his wheelchair—believing the room to be
his and mistaking Ituah for his wife—climbed onto the bed, sat on Ituah’s
legs while remaining clothed, but then left when Ituah cried out. Ituah sued
ASH and two hospital superintendents in federal court under various legal
theories, including 42 U.S.C. § 1983 and the Americans with Disabilities Act
(“ADA”) and Rehabilitation Act (“RA”), and also sought class certification.
See 42 U.S.C. § 12132; 29 U.S.C. § 794(a).
Following extensive pretrial litigation and discovery, the district court
denied class certification, leaving only two categories of claims: (1) Ituah’s
ADA/RA claims against ASH, and (2) Ituah’s § 1983 claims against the
superintendents. After summary judgment motions were filed by all
defendants, the district court adopted the magistrate judge’s
recommendation to dismiss all of Ituah’s claims with prejudice. Ituah now
appeals only the summary judgment dismissal of her ADA/RA claims, which
we review de novo. See James v. Cleveland Sch. Dist., 45 F.4th 860, 864 (5th
Cir. 2022); Fed. R. Civ. P. 56(a).
Ituah presses three ADA/RA 1 theories on appeal. First, she argues
ASH is liable for harassment by a fellow patient under our court’s decision in
Estate of Lance v. Lewisville Independent School District, 743 F.3d 982 (5th Cir.
2014). Among other things, Lance explained that a plaintiff must show she
was harassed based on her disability. Id. at 996. Here, the district court
concluded Ituah failed to show this element, and her appellate brief states
that she “is not claiming that she was assaulted because she has a disability.”
Ituah reiterated this concession at oral argument. Accordingly, we affirm the
summary judgment on this ground.
Second, Ituah claims ASH discriminated against her by failing to
follow the hospital’s internal policies concerning sexual assault claims. But a
1
Cases interpreting the ADA are generally applicable to the RA, and vice versa.
See, e.g., Cadena v. El Paso Cnty., 946 F.3d 717, 723 (5th Cir. 2020).
2
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No. 22-50305
discrimination claim under the ADA/RA requires showing discrimination
based on the plaintiff’s disability. See, e.g., Cadena v. El Paso Cnty., 946 F.3d
717, 723 (5th Cir. 2020) (requiring “that such exclusion, denial of benefits,
or discrimination is by reason of [plaintiff’s] disability” (quoting Melton v.
Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004))). Ituah
points to no such evidence. Even viewed most favorably to her, Ituah’s
evidence shows that hospital staff neglected to follow all relevant policies,
such as by failing to order a “rape kit.” Perhaps this is evidence of negligence,
but it is not evidence of discrimination based on Ituah’s disability. We
therefore affirm the summary judgment on this ground as well.
Finally, Ituah presses a failure-to-accommodate claim. That requires
showing, inter alia, that ASH “failed to make ‘reasonable
accommodations’” for Ituah’s known disability. Amedee v. Shell Chem., L.P.,
953 F.3d 831, 837 (5th Cir. 2020) (citation omitted). Ituah did not raise a
genuine dispute on this issue, however. For example, her expert opined that
poor “sightlines” prevented nurses from observing the door to Ituah’s room.
But unrebutted evidence showed “sightlines” played no role in patient
monitoring; instead, ASH staff is trained to personally and directly monitor
patient areas at regular intervals. Ituah’s expert also suggested patient doors
should have been lockable from the inside. But no evidence suggested this
would have been a reasonable measure. To the contrary, ASH’s unrebutted
evidence detailed its policies and procedures designed to protect patients and
also explained why internal door locks would have been “unwise and unsafe”
for psychiatric patients. Accordingly, we affirm the summary judgment on
this ground as well.
AFFIRMED.
3