United States District Court, S.D. Texas, Galveston Division
D.R. b/n/f NICCOLE LEWIS; and NICOLE LEWIS, individually Plaintiffs.
DEVEREUX ADVANCED BEHAVIORAL HEALTH Defendant.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
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.
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.
section is based on the material facts alleged in the First
Amended Complaint (“Amended
Complaint”). 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
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.
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.
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.
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.
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.
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.
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.
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
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
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.