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MERCHANT v. KRING

February 8, 1999

TOM MERCHANT, PLAINTIFF,
v.
DR. WILLIAM T. KRING, D.D.S., DEFENDANT.



The opinion of the court was delivered by: Ziegler, Chief Judge.

MEMORANDUM ORDER

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' written submissions,

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 omitted).

(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 that:

  [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
  public accommodation.

28 C.F.R. pt. 36, app. B, ยง 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 ...


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