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Lewis v. Devereux Advanced Behavioral Health

United States District Court, S.D. Texas, Galveston Division

April 17, 2019

D.R. b/n/f NICCOLE LEWIS; and NICOLE LEWIS, individually Plaintiffs.
v.
DEVEREUX ADVANCED BEHAVIORAL HEALTH Defendant.

          MEMORANDUM AND RECOMMENDATION

          ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Niccole Lewis (“Lewis”), individually and on behalf of her son, D.R., filed this lawsuit against Defendant Devereux Advanced Behavioral Health (“Devereux”). Devereux has filed a Motion to Dismiss for Plaintiff's Failure to State a Claim (“Devereux's Motion to Dismiss”) (Dkt. 23), seeking dismissal of Lewis's cause of action based on Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794. Devereux's Motion to Dismiss was referred to this Court by United States District Court Judge George C. Hanks, Jr. for report and recommendation. Dkt. 26.

         After careful consideration of the relevant pleadings, oral argument, and applicable law, the Court RECOMMENDS that Devereux's Motion to Dismiss be DENIED in part and GRANTED in part.

         FACTUAL BACKGROUND

         This section is based on the material facts alleged in the First Amended Complaint (“Amended Complaint”).[1] D.R. is a minor who has been diagnosed with pervasive developmental delays, autism spectrum disorder, bipolar disorder, depression, anxiety, and attention deficit hyperactivity disorder. Devereux is a nonprofit organization with a number of locations across the United States. Devereux's League City, Texas location serves adolescents and young adults between the ages of 13 and 22 years old with emotional, behavioral, developmental, psychiatric, and chemical dependency disorders. Devereux advertises itself as a place that “changes lives by unlocking and nurturing human potential for people living with emotional, behavioral or cognitive differences.” Dkt. 22 at 4. To help D.R. prepare to attend school and cope with his disabilities, Lewis enrolled D.R. at Devereux's League City location. D.R. arrived at Devereux on March 22, 2017. Within weeks, Lewis received reports that D.R. was becoming more independent and learning to socialize with his peers.

         The positive feedback, however, failed to reveal that soon after D.R.'s arrival at Deveraux, he encountered gross mistreatment. The Amended Complaint provides a chronology of events, detailing a series of alarming incidents. The first signs of trouble began when D.R. injured his knee playing basketball on May 20, 2017. After hearing about the injury, Lewis called Devereux and told a nurse that D.R. needed to go to the emergency room. The nurse told Lewis that Devereux employees were monitoring D.R. and waiting for a Devereux doctor to make that determination. The next day, D.R. was taken to Clear Lake Emergency Medical Corps where he was diagnosed with deep bruising and ordered to bed rest. Lewis alleges that nobody at Devereux let her know that D.R. had been taken to the emergency room.

         When Lewis called Devereux on May 29, 2017, a nurse claimed that D.R. was “acting like he wanted someone to ‘beat him up' so he could go home.” Id. at 6. Alarmed by this comment, Lewis emailed a Devereux case coordinator and supervisor. Lewis further alleges that on May 29, 2017, two Direct Support Personnel (“DSP”) at Devereux physically restrained D.R. D.R. told the DSPs they were “breaking his leg” and that he “heard something pop” in his knee. Id. at 7. Devereux took D.R. to the hospital for medical care, where an orthopedic surgeon determined that D.R. suffered a torn ACL that required knee surgery. On June 22, 2017, D.R. had knee surgery. Following the surgery, doctors instructed D.R. to use a wheelchair for eight weeks.

         The Amended Complaint next details an incident that occurred on July 24, 2017 after D.R. asked a DSP, Feliz Johnson (“Johnson”), whether a package had arrived for him. D.R. expressed his displeasure when the Johnson would not tell him if the package had arrived. Johnson allegedly told D.R. to be quiet, and that he was “sick and tired of his sh[*]t” and that “[D.R.] thought that he was so special.” Id. at 8. The Amended Complaint alleges that Johnson called D.R. derogatory names and “grabbed him by his shirt, pulled him out of his wheelchair, threw him on the bed face-down, climbed on top of D.R. with one leg on each side of his body, and put his arm around D.R.'s neck in a choke-hold.” Id.

         D.R.'s roommate witnessed the incident and went to get another DSP. The other DSP physically removed Johnson from D.R. Lewis claims that Devereux never contacted her about this incident. Instead, Lewis learned about the incident a few days later when D.R. recounted the events to her. Lewis contacted Devereux and she was assured that Johnson would be transferred pending an investigation.

         Lewis next alleges that D.R. suffered a third restraint injury on August 8, 2017. Due to his anxiety, D.R. defecated on himself. D.R. requested a change of clothes from a nurse. The nurse refused to give D.R. a change of clothes and D.R. became verbally aggressive. A supervisor and two DSPs were called to physically restrain D.R. During this incident, D.R.'s knee was re-injured, and he was taken to the emergency room. He was placed on bed rest and told not be bear weight on his knee for two weeks.

         In August 2017, Hurricane Harvey hit the Houston area and all Devereux clients were evacuated to another location. Lewis went to visit D.R. at the new location and realized that the area was not secure enough for D.R., who was prone to wander. Devereux asked Lewis to take D.R. home because it could not adequately meet D.R.'s needs at the temporary location. Lewis returned home with D.R. for a month. During this time, Lewis alleges D.R. did not receive any services from Devereux although “some of which could have been administered via telephone or video conference.” Id. at 10.

         Following D.R.'s return to Devereux in October 2017, Lewis alleges Devereux continued to mistreat D.R. In a December 2017 family therapy session, which included D.R., Lewis, and a Devereux therapist, D.R. reported that multiple Devereux employees were verbally abusive. On January 29, 2018, D.R. stated that he was afraid of a certain DSP, Jahmile Thomas (“Thomas”). D.R. alleges that Thomas called him a “blue nigger” and D.R. felt threatened by Thomas. Lewis reported this incident to D.R.'s treatment team and “[i]n response to Lewis'[s] report, Dr. Tulan Nguyen told Lewis, ‘If you don't like the program, you can take him out.'” Id. at 12.

         Lewis alleges that on January 31, 2018, Thomas assaulted and abused D.R. D.R. suffered an abrasion to the head, a contusion on his face, and a large cut across his shoulders. On February 1, 2018, a Devereux supervisor called Lewis to advise her that Devereux had reported the incident to the Texas Department of Family Protective Services (“TDFPS”). TDFPS sent an investigator, Lynette Damra (“Damra”), to the facility. Following Damra's interview with D.R. and a Devereux nurse, Damra recommended that Thomas never be allowed to work around children again. Despite this recommendation, Lewis alleges that Thomas returned to work at Devereux at some point in 2018. D.R. saw Thomas at Devereux on or about April 9, 2018, and had a panic attack. That day, a Devereux staff member contacted Lewis and reported that D.R. was acting “weirder” than normal. Fearing for her son's safety, Lewis flew to Devereux on April 14, 2018, to retrieve her son.

         Lewis alleges nine causes of action against Devereux: (1) violations of Section 504; (2) violations of the Texas Mental Health Code; (3) negligence; (4) intentional infliction of severe mental and emotional distress; (5) assault and battery; (6) respondeat superior; (7) proximate cause; (8) ratification; and (9) Lewis's individual claims for economic damages.

         Devereux has only moved for dismissal of the Section 504 claim, arguing that “[Lewis] has insufficiently plead her claim against [Devereux] under Section 504 of the Rehabilitation Act of 1973 and as such fails to state a claim upon which relief can be granted.” Dkt. 23 at 2.

         MOTION TO ...


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