The opinion of the court was delivered by: Ziegler, Chief Judge.
AND NOW, this 8th day of February, 1999, after consideration of
the motion (doc. no. 64) of defendant, William T. Kring, D.D.S.
("Dr. Kring" or "Kring"), for summary judgment, and the parties'
IT IS ORDERED that defendant's motion shall be and hereby is
denied for the following reasons:
(1) Plaintiff, Thomas Merchant, sued defendant, Dr. Kring,
claiming that Kring discriminated against him on the basis of
disability in violation of Title III of the Americans with
Disabilities Act ("ADA"), Public Accommodations,
42 U.S.C. § 12182, and the Rehabilitation Act ("RHA"), 29 U.S.C. § 794.
(2) Dr. Kring moves for summary judgment on these claims,
arguing that (i) Merchant lacks standing to seek injunctive
relief under Title III of the ADA because plaintiff has failed to
establish a threat of present or future harm, and plaintiff's
claim for injunctive relief is based entirely on past harm; (ii)
Merchant is not disabled within the meaning of the ADA and the
RHA; (iii) defendant did not deny Merchant dental services in
violation of the acts; (iv) punitive damages are unavailable
under the RHA; and (v) Merchant has failed to establish pretext.
We will address these arguments below.
(3) Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a
motion for summary judgment, we must examine the evidence in the
light most favorable to the non-moving party and draw all
reasonable inferences in favor of that party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
(4) To establish standing for injunctive relief, the plaintiff
must allege that: (i) he or she suffered an injury in fact which
is both "concrete and particularized" and "actual or imminent";
(ii) there is a causal connection between the injury alleged and
the defendant's conduct; and (iii) "it [is] `likely,' as opposed
to merely `speculative,' that the injury will be `redressed by a
favorable decision.'" Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations
(5) We hold that plaintiff suffered an injury when Dr. Kring
allegedly did not treat him and requested that plaintiff submit
to an HIV test.
(7) Finally, injunctive relief by this court could remedy the
injury. If it is established at trial that defendant
discriminated against Merchant in violation of the ADA, the court
could fashion an order requiring Dr. Kring to comply with the
ADA. See Abbott v. Bragdon, 163 F.3d 87 (1st Cir.
1998) (affirming the district court's grant of injunctive relief
to the plaintiff); see also D.B. v. Bloom, 896 F. Supp. 166, 171
(D.N.J. 1995) (court ordered dentist to, inter alia, cease
discrimination against HIV positive patients). In sum, plaintiff
has satisfied the standing requirements.
(8) Second, defendant argues that plaintiff's ADA and RHA
claims should be dismissed because plaintiff is not disabled
within the meaning of the acts.*fn1 Plaintiff alleges that the
disability requirement of both acts is satisfied because Dr.
Kring regarded him as disabled. Defendant rejoins that he never
regarded Merchant as HIV positive.
(9) The ADA defines disability as, "(A) a physical or mental
impairment that substantially limits one or more of the major
life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102 (emphasis added). The regulations clarify that
"[t]he phrase is regarded as having an impairment means. . . .
[that the individual] (iii)[h]as none of the impairments
described in paragraph (1) of this definition but is treated by a
private entity as having such an impairment." 28 C.F.R. § 36.104.
Department of Justice comments to the regulations illustrate
[i]f a person is refused admittance on the basis of
an actual or perceived physical or mental condition,
and the public accommodation can articulate no
legitimate reason for the refusal (such as failure to
meet eligibility criteria), a perceived concern about
admitting persons with disabilities could be inferred
and the individual would qualify for coverage under
the "regarded as" test. A person who is covered
because of being regarded as having an impairment is
not required to show that the perception is
inaccurate . . . in order to be admitted to the
28 C.F.R. pt. 36, app. B, § 36.104. Similarly, the RHA defines an
individual with a disability as "any person who(i) has a physical
or mental impairment which substantially limits one or more of
such person's major life activities; (ii) has a record of such an
impairment; or (iii) is regarded ...