IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41349

ROLANDO PEREZ; MIRIAM PEREZ, 

 Plaintiffs - Appellants

v.

DOCTORS HOSPITAL AT RENAISSANCE, LIMITED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:13-CV-124

Before WIENER, CLEMENT and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiffs Rolando and Miriam Perez brought claims against defendant 

Doctors Hospital at Renaissance, Limited, pursuant to Title III of the 

Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and 

Chapter 121 of the Texas Human Resources Code. The district court granted 

summary judgment to DHR on all claims. We REVERSE the judgment and 

REMAND for further proceedings.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2015

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

On January 16, 2011, the plaintiffs took their four-month-old daughter 

to the emergency room at Doctors Hospital at Renaissance (“DHR”), located in 

Edinburg, Texas. Their daughter was diagnosed with a brain tumor that

required monthly treatment at DHR. Mrs. Perez is completely deaf and 

communicates exclusively in American Sign Language (“ASL”). Her ability to 

read and write is limited. Mr. Perez is completely deaf in his right ear and 

cannot hear well in his left ear. His primary language is ASL and he reads

and writes in English only with difficulty. DHR has known the plaintiffs 

required auxiliary services during their hospital visits since at least January 

2011. 

The plaintiffs allege that throughout 2011 and part of 2012, DHR 

repeatedly failed to provide them an interpreter. On the occasions DHR did 

provide them an interpreter, the plaintiffs allege they would sometimes have 

to wait “upwards of a full day” for the interpreter to arrive. The plaintiffs’ 

daughter’s first round of chemotherapy ended in January 2013. The plaintiffs

do not allege that there were any problems with DHR’s provision of auxiliary 

services for the time period of 2013 through early 2014. In April 2014, the 

plaintiffs’ daughter was diagnosed a second time with cancer and ordered to 

undergo chemotherapy over an 80-week period. The plaintiffs allege that after 

this second diagnosis they again experienced problems with DHR’s auxiliary

services. They allege that an interpreter was not always provided. 

Furthermore, the video remote imaging (“VRI”) machines, which DHR began 

to offer to the plaintiffs in late 2013, did not always function properly. They 

also allege that DHR’s medical staff was, at times, unable to operate the 

machines and that some nurses did not understand or know about VRI. 

The plaintiffs filed suit against DHR in March 2013. In June 2014, DHR 

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moved for partial summary judgment on the plaintiffs’ federal claims. In July, 

the district court held a hearing on the motion and granted summary judgment 

to DHR on the plaintiffs’ Americans with Disabilities Act (“ADA”) and 

Rehabilitation Act (“RA”) claims. In August, DHR moved for summary 

judgment on the plaintiffs’ state-law claims, which the district court granted. 

The plaintiffs timely appealed.

DISCUSSION

“We review a district court’s ruling on a motion for summary judgment 

de novo and apply the same legal standards as the district court.” Bellard v. 

Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). Summary judgment is proper 

when the “movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.

P. 56(a). 

I. Title III of the Americans with Disabilities Act

Title III of the ADA provides: “No individual shall be discriminated 

against on the basis of disability in the full and equal enjoyment of the goods, 

services, facilities, privileges, advantages, or accommodations of any place of 

public accommodation by any person who owns . . . or operates a place of public 

accommodation.” 42 U.S.C. § 12182(a). A hospital is a public accommodation 

under Title III of the ADA. See id. § 12181(7)(F). Damages are not available

for a Title III ADA claim brought by a private party, but a private party may 

seek injunctive relief. See id. § 12188(a); Plumley v. Landmark Chevrolet, Inc., 

122 F.3d 308, 312 (5th Cir. 1997). 

Standing to seek injunctive relief requires plaintiffs to show that they 

suffer or will suffer an injury-in-fact, and therefore would benefit from the 

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court’s granting of such equitable relief. Id. Plaintiffs must demonstrate that 

they face a palpable present or future harm, not harm that is “conjectural or 

hypothetical.” Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 n.23 (5th 

Cir. 1998) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). 

Allegations of “past wrongs” alone do not “amount to that real and immediate 

threat of injury necessary to make out a case or controversy.” Id. at 563 

(quoting Lyons, 461 U.S. at 103) (alteration omitted). Past wrongs can be 

considered, however, as evidence of an actual threat of repeated injury. 

Henschen v. City of Houston, 959 F.2d 584, 588 (5th Cir. 1992) (citing O’Shea 

v. Littleton, 414 U.S. 488, 496 (1974)).

At the summary judgment hearing on the plaintiffs’ ADA claim, the 

district court found that “Mr. Perez had no complaint about the 

accommodations that were being made to [him] and his family by the Hospital 

after December of 2011.” Therefore, the court stated, it “seemed to be clear 

from the evidence” that there was no “real and immediate threat of future 

harm.” On the same day as the hearing, the court issued a one-page order 

granting summary judgment to DHR. The court referred to the reasons it 

stated in open court at the motion’s hearing as explanation for its judgment. 

In the transcript from the hearing, the district court did not explicitly refer to 

standing. It is clear, though, that the court dismissed based on the lack of a 

real and immediate threat of future harm. That issue is part of the analysis 

for standing. Furthermore, both DHR’s motion for summary judgment and the 

plaintiffs’ response focused on standing as to the ADA claim. 

The plaintiffs argue on appeal that there were genuine disputes of 

material fact as to whether there is a real threat of future harm. They refer to 

“overwhelming evidence of DHR’s repeated and recent failures to provide 

effective communication through auxiliary aids or reasonably accommodate 

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the Perez family’s hearing disabilities.” Included in the evidence is Mr. Perez’s 

affidavit. He swore that during his family’s visits to DHR in the three-month 

period prior to the court’s summary judgment ruling, they encountered: (1)

VRI machines that did not always work properly; (2) a nurse who did not know 

how to use the VRI machine; and (3) two nurses who “did not know what ‘VRI’

was.” Mr. Perez also stated that he always “prefer[s] an in-person interpreter, 

but DHR does not always have one available, even after we have requested it.”

Also introduced were Mr. Perez’s handwritten notes describing the 

family’s visits to DHR. The notes indicate that an interpreter was requested 

and not provided as late as April 2012. Moreover, Norma Teran, DHR’s 

executive vice president for nursing, testified in her June 2014 deposition that

DHR’s ADA compliance policy for the hearing impaired was in need of revision. 

Teran also testified that she was unable to find any training sessions that had 

taken place at DHR related to addressing the needs of the hearing impaired. 

DHR acknowledges that Mr. Perez asserts in his affidavit that the 

plaintiffs have recently experienced problems. DHR contends, though, that 

Mr. Perez does not state that DHR refused to provide a VRI machine or 

interpreter when requested, that DHR was unable to get the VRI machine to 

work on any occasion, or that the nurse unfamiliar with how to use the VRI 

machine did not ultimately figure out how to use it or enlist the aid of someone 

familiar with the machine. DHR argues that “in light of the Perezes visiting 

DHR numerous times in the last three years without incident, the Perezes’ 

minor VRI complications are insufficient to create an inference that they face 

a substantial risk of future harm.” 

In analyzing the propriety of summary judgment, “we consider all the 

facts contained in the summary judgment record and the inferences to be 

drawn therefrom in the light most favorable to the non-moving party.” Duarte 

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v. City of Lewisville, 759 F.3d 514, 517 (5th Cir. 2014) (citation and internal 

quotation marks omitted). We conclude that the district court erred in holding 

there was no genuine dispute of material fact as to whether the plaintiffs faced 

a real and immediate threat of future harm. Mr. Perez’s affidavit is evidence 

that the plaintiffs have experienced recent problems with DHR’s provision of 

auxiliary services. Furthermore, the evidence of DHR’s failure to revise its 

ADA compliance policy, which it admits needs revision, and its lack of training

on addressing the needs of the hearing impaired, creates a possible inference 

that the plaintiffs’ problems with the provision of auxiliary services will 

continue in the future. 

Because we conclude there is a genuine dispute of material fact on the 

question whether the plaintiffs have standing to bring their ADA claim, we 

reverse the district court’s grant of summary judgment on that claim.1

II. Section 504 of the Rehabilitation Act

The RA protects the disabled who seek to participate in a program or 

activity receiving federal funds from discrimination: no otherwise qualified 

individual “shall, solely by reason of her or his disability, be excluded from the 

participation in, be denied the benefits of, or be subjected to discrimination 

under any program or activity receiving Federal financial assistance.” 29 

U.S.C. § 794(a). To receive compensatory damages under the RA, a plaintiff 

must offer proof of intentional discrimination. Delano-Pyle v. Victoria County, 

302 F.3d 567, 574 (5th Cir. 2002). 

 

1 The plaintiffs also appear to argue that the district court should have addressed the 

merits of their ADA claim. In their response to DHR’s motion for partial summary judgment, 

the plaintiffs’ only argument on the ADA claim was that they had standing to bring the claim 

because there was a real and immediate threat of future harm. They did not raise any 

argument as to the merits of their ADA claim. They may not raise that issue now. See Brazos 

Valley Coal. for Life, Inc. v. City of Bryan, 421 F.3d 314, 321 n.7 (5th Cir. 2005).

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We did not define what we meant by intent in Delano-Pyle. Some circuits 

have held that deliberate indifference suffices. See Liese v. Indian River Cty.

Hosp. Dist., 701 F.3d 334, 345 (11th Cir. 2012). The parties have not briefed 

the issue in any depth, and we decline to make new law on the nature of intent 

at this time. We conclude that on the present record, there is enough to show

a dispute of material fact on whether DHR intentionally, i.e. purposefully, 

discriminated. Intent is usually shown only by inferences. See Crawford v. 

Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000). Inferences are 

for a fact-finder and we are not that. See id. Still, we conclude that actual 

intent could be inferred from the evidence before us.

At the summary judgment hearing, the district court stated that there 

was no evidence of intentional discrimination. The court held the DHR “did 

whatever [it] could to provide effective communication.” The plaintiffs argue 

that the district court failed to view the facts in the light most favorable to 

them as the non-movants. They rely on Mr. Perez’s handwritten notes on his 

daughter’s medical records that document at least 18 dates on which an 

interpreter was not provided. Also, in Mr. Perez’s deposition, he testified that 

when he asked one nurse for an interpreter, she told him one would be provided

“[o]nly when the doctor shows up or if there’s any questions you need help or 

concerns, then you can ask.” Mrs. Perez also testified in her deposition that 

when she requested an interpreter, sometimes the “nurses would say no. They 

would say that the boss said no.” Furthermore, Teran testified that DHR’s 

policies as to the hearing impaired were “certainly” in need of revision, and had 

not been revised since May 2012, and that DHR did not provide any training 

on addressing the needs of the hearing impaired.

Our review of the evidence is through the summary judgment lens. “The 

evidence of the non-movant is to be believed, and all justifiable inferences are 

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to be drawn in his favor.” Coastal Agric. Supply, Inc. v. JP Morgan Chase 

Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986)) (internal quotation marks omitted). In 

examining the evidence, we are guided by a case in which a plaintiff driver, 

who was severely hearing impaired, was involved in a car accident. See

Delano-Pyle, 302 F.3d at 570. When a police officer arrived, the driver

informed him of his hearing disability. Id. The officer nonetheless performed 

several sobriety tests on the driver without asking which form of 

communication would be effective. Id. The driver sued for violations of the 

ADA, the RA, and Chapter 121 of the Texas Human Resources Code. Id. at 

571. A jury found the county liable, and the county appealed. Id. On appeal, 

on plain error review, we held that “[t]he facts addressed at trial support the 

jury’s finding of intentional discrimination.” Id. at 573, 575. We deemed it 

important that “no matter how many times [the officer] repeated himself and 

no matter how loudly he spoke, [the driver] could not understand most of what 

he was saying,” yet the officer did not “try[] a more effective form of 

communication.” Id. at 575.

We acknowledge the alleged RA violation here and in Delano-Pyle 

occurred in different contexts. Still, the evidence in each case could be seen as 

suggesting that the defendant’s agents ignored clear indications that they were 

dealing with a hearing-impaired person with special communication needs.

The summary judgment evidence is sufficient to create a genuine dispute 

as to whether DHR intentionally discriminated against the plaintiffs. There 

is evidence indicating that on several occasions, an interpreter was requested 

but not provided. There is also evidence indicating that one of the forms of 

communication that DHR was utilizing, the VRI machines, was often 

ineffective. In Delano-Pyle, the plaintiff did not show he ever requested an 

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interpreter or auxiliary aid, yet we concluded that the failure to provide an 

effective form of communication was evidence of intentional discrimination. 

Here, some evidence indicates that the plaintiffs made repeated requests for 

auxiliary aids, yet DHR failed on several occasions to provide effective aids and 

in some instances refused to provide an interpreter after one had been 

requested. 

We conclude that, even without applying a deliberate indifference 

standard, there is a genuine dispute of material fact as to whether DHR

intentionally discriminated against the plaintiffs. Accordingly, the district 

court’s dismissal of the plaintiffs’ RA claim was error. On remand, the district

court may, if necessary to resolve the case, make the initial effort to define 

intent under this statutory scheme.

III. Chapter 121 of the Texas Human Resources Code

The district court granted DHR’s second motion for summary judgment

after noting in its order that the parties did not dispute that Chapter 121 is 

analogous to the RA. The court found there was no “genuine issue of material 

fact on whether the steps taken by DHR to provide auxiliary aids and services 

to Plaintiffs demonstrate an intent to discriminate against Plaintiffs because 

of their disability.” Because we hold that the plaintiffs have demonstrated that

a factual dispute exists on the question of intentional discrimination, we 

reverse the district court’s grant of summary judgment to DHR on the 

plaintiffs’ Chapter 121 claims.

IV. Declaratory Relief

The plaintiffs argue that it was error for the district court to dismiss 

their claims because they specifically requested declaratory relief in their 

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complaint. DHR responds that the plaintiffs only requested declaratory relief 

on their ADA claim, and that declaratory relief is not available when there is 

no risk of future harm. The district court did not address the issue of

declaratory relief in either of its summary judgment orders or at the summary 

judgment hearing. We leave the question of declaratory relief for the district 

court to consider in the first instance on remand.

* * *

We REVERSE the district court’s dismissal of the plaintiffs’ claims and 

REMAND for further proceedings consistent with this opinion.

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