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Alonso v. Alonso

United States District Court, S.D. Florida

October 17, 2019

Carlos Alonso, as guardian of Angie Alonso, Plaintiff.
v.
Dr. Gladys Y. Alonso, M.D., Defendant.

          ORDER ON MOTION TO DISMISS

          Robert N. Scola, Jr. United States District Judge

         Carlos Alonso (“Carlos”), as guardian of his son Angie Alonso (“Angie”), sues Defendant Dr. Gladys Alonso. M.D. (“Gladys”), Angie's former physician, for injunctive relief and compensatory damages under Title III of the Americans with Disabilities Act (the “ADA, ” 42 U.S.C. § 12182), the Rehabilitation Act (29 U.S.C. § 794) and other claims under Florida law.

         Now before the Court is Gladys's motion to dismiss. (ECF No. 62.) She argues that the Carlos's claims regarding the inaccessibility of her office are moot because she moved her office to a new location since this lawsuit was filed. The Court agrees that the claims are moot, and therefore grants in part Dr. Gladys's motion to dismiss (ECF No. 62).

         1. Background

         Carlos is the legal guardian for his permanently disabled adult son, Angie, with whom he lives in Hialeah, Florida. Angie suffers from, among other things, cognitive impairments, severe cerebral palsy and spasticity resulting from hypoxia during a complex childbirth. (ECF No. 61 at ¶ 2.) These conditions have rendered Angie unable to walk without the assistance of others. As such, he must use a wheelchair when traveling outside his home. (Id.) Angie cannot meaningfully speak or communicate with others and requires twenty-four-hour assistance to complete tasks of daily living, such as bathing, eating and using the bathroom. (Id.) This assistance is provided almost exclusively by Carlos and Angie's mother.

         Angie received Home Health Aid Services (“HHAS”) through an assigned Personal Care Assistant (“PCA”) through Florida's Medicaid program. (Id. at ¶¶ 7, 8, 21-23.) “This PCA worker would typically visit Angie's home for three (3) hours to assist Angie with everyday living activities that he could not perform on his own.” (Id. at ¶ 22.) To receive this service, Angie was required to obtain a medical assessment every sixty-days with a physician who certified to the State of Florida that Angie still required a PCA. (Id.) From September 2012 through December 2016, Gladys was that physician for Angie. (Id. at ¶¶ 3, 15, 22.)

         At the beginning of their relationship, Angie would visit Gladys' medical office in Hialeah (the “Office”). (Id. at ¶ 5.) But “Angie's wheelchair could not easily fit through the elevator doors [and] office door” and the Office's “waiting room was too small” for a handicapped person like Angie. (Id. at ¶ 17.) So, to complete the assessments required for PCA services, the parties sought alternative arrangements. Ultimately, Angie agreed to forgo receiving medical care at the Office, and instead Gladys “would visit Angie in his apartment.” (Id. at ¶ 18.)

         Home visits occurred sporadically. “From 2012 to the end of the physician-patient relationship in 2016, [Gladys] continually missed scheduled meetings with Angie.” (Id. at ¶ 20.) Her medical staff also “did not respond to Angie's case worker when [Gladys] failed to visit every month.” (Id.) By ignoring her “obligation to do a medical assessment of Angie and submit every (60) days the paperwork to the State of Florida, ” Angie “lost hundreds of hours of service from the PCA.” (Id. at ¶¶ 20-23.) “The only replacement for this worker was through [Carlos] and Angie's mother.” (Id. at ¶ 23.)

         In late 2016, Angie received emergency treatment for medical ailments that Carlos claims “could have been ameliorated if [Gladys] had been providing medical care to Angie.” (Id. at ¶ 26.) At that point, Carlos began looking for a new physician for Angie and eventually settled on a doctor at the Lennar Center in Coral Gables, Florida. (Id. at ¶¶ 9, 27.) But traveling from Hialeah to Coral Gables can take over an hour and making this trip “is an arduous task for Angie and his parents.” (Id. at ¶¶ 9, 44.) Indeed, Angie's “actual spasticity” causes “him a lot of pain when sitting in the wheelchair or traveling in the car for more than thirty (30) minutes.” (Id. at ¶¶ 9, 42.) Because of this, “Angie would reasonably intend to stay a medical patient of” Gladys' Hialeah medical practice “but for [Gladys'] failure to reasonably accommodate [Angie's] disability.” (Id. at ¶ 43.)

         On August 30, 2019, Carlos filed his second amended complaint, which brings architectural barrier claims pursuant to the ADA (count I), failure to make reasonable policy changes under the ADA (counts II-IV), retaliation in violation of the ADA and the Rehabilitation Act (counts V and VII), intentional discrimination in violation of the Rehabilitation Act (count VI), breach of contract (count VIII), promissory estoppel (count IX), and intentional infliction of emotional distress (count X). (ECF No. 61.) Since the Plaintiff filed suit, the Defendant has moved offices. She no longer uses the premises with the allegedly offending barriers to access, and now practices medicine exclusively from a new location. (ECF No. 63 ¶¶ 1-6.)

         2. Legal Standard

         When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.

         Yet, where the allegations “possess enough heft” to suggest a plausible entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that ...


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