Ervine v. Desert View Regional Medical Center Holdings, LLC , 753 F.3d 862 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIE ERVINE, as an individual and as No. 12-15059
Executor of the Estate of Charlene
Elaine Ervine, deceased, D.C. No.
Plaintiff-Appellant, 2:10-cv-01494-
JCM-GWF
v.
DESERT VIEW REGIONAL MEDICAL OPINION
CENTER HOLDINGS, LLC; GEORGES
TANNOURY, M.D., a domestic
corporation; GEORGES TANNOURY,
M.D., an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
February 12, 2014—San Francisco, California
Filed May 29, 2014
Before: Diarmuid F. O’Scannlain and Mary H. Murguia,
Circuit Judges, and Lynn S. Adelman, District Judge.*
Opinion by Judge O’Scannlain
*
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
2 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
SUMMARY**
Rehabilitation Act / Americans with Disabilities Act
The panel vacated in part and reversed in part the district
court’s summary judgment on claims under the Rehabilitation
Act and the Americans with Disabilities Act against health
care providers for failure to communicate effectively with a
person who was deaf.
The panel held that the plaintiff lacked standing to bring
claims for injunctive relief under Title III of the Americans
with Disabilities Act because he did not show a real and
immediate threat that he would be denied effective
communication by the defendants, either as a patient in his
own right or as a companion to another patient. The panel
vacated the district court’s grant of summary judgment in
favor of the defendants as to these claims and remanded with
instructions to dismiss them without prejudice for lack of
jurisdiction.
The panel held that the district court erred in concluding
that the plaintiff’s claims under § 504 of the Rehabilitation
Act, brought individually and on behalf of his wife’s estate,
were untimely under Nevada’s two-year statute of limitations
for personal injuries. The panel held that so long as an
alleged violation of § 504 is a discrete and independently
wrongful discriminatory act, it causes a new claim to accrue
and a new limitations period to run. The panel reversed the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 3
district court’s grant of summary judgment in favor of the
defendants as to the Rehabilitation Act claims.
COUNSEL
Dale H. Boam, Salt Lake City, Utah, argued the cause and
filed the briefs for the plaintiffs-appellants. With him on
brief was Norman N. Hirata, Las Vegas, Nevada.
Eric K. Stryker, Wilson, Elser, Moskowitz, Edelman &
Dicker LLP, Las Vegas, Nevada, argued the cause and filed
the brief for defendant-appellee Desert View Regional
Medical Center Holdings, LLC.
John H. Cotton, Cotton, Driggs, Walch, Holley, Woloson &
Thompson, Las Vegas, Nevada, argued the cause and
Christopher G. Rigler filed the brief for defendants-appellees
Georges Tannoury, M.D., a domestic corporation and
Georges Tannoury, M.D., an individual.
OPINION
O’SCANNLAIN, Circuit Judge:
We are presented with claims under the Rehabilitation
Act against health care providers for failure to communicate
effectively with a person who is deaf.
I
Charlene Ervine, who was deaf, died of cancer in
November 2009. In the years before her death, she sought
4 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
treatment at Desert View Regional Medical Center, a hospital
serving Pahrump, Nevada, and from Dr. Georges Tannoury,
a practitioner who owned Specialty Medical Center in that
town. Her husband, Sie Ervine, who is also deaf,
accompanied her on many of her medical visits. Both Mr.
and Mrs. Ervine communicated primarily through American
Sign Language.
Mr. Ervine contends that Desert View and Dr. Tannoury
on several occasions failed to take the steps necessary to
communicate effectively with the Ervines about Mrs.
Ervine’s treatment. Specifically, neither provided the Ervines
with an interpreter during their visits and neither was
prepared to provide an interpreter when necessary.
According to Mr. Ervine, Desert View had refused to
provide a sign-language interpreter from the first time Mrs.
Ervine visited the hospital, in August 2007. As to Dr.
Tannoury, Mrs. Ervine reported—as early as April 2008—to
the Nevada Deaf and Hard of Hearing Advocacy Resource
Center (“Advocacy Resource Center” or “the Center”) that
she was having problems with her doctor, who refused to
provide her with an interpreter. Despite the Center’s help, her
difficulties with Dr. Tannoury’s office continued. On
November 12, 2008, an administrative assistant informed the
Center that Dr. Tannoury’s office did not “provide sign
language interpreters” because it was “a private practice.”
The assistant later explained that Dr. Tannoury made such
decisions and had “refused to provide” interpreters. The
Ervines’ difficulties with Desert View and Dr. Tannoury
continued until Mrs. Ervine’s death.
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 5
II
Mr. Ervine, individually and on behalf of his wife’s
estate, sued Desert View and Dr. Tannoury1 on September 1,
2010, alleging violations of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq., Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794, as well as negligent and
intentional infliction of emotional distress under state law.
He filed an amended complaint on September 14.
Dr. Tannoury moved for summary judgment, arguing that
the Ervines knew or should have known of their injuries well
before the two-year statute of limitations period. Mrs. Ervine
complained to the Advocacy Resource Center about Dr.
Tannoury’s failure to provide her with an interpreter in April
2008 and discussed suing him by June. Desert View joined
Dr. Tannoury’s motion, similarly insisting that Mrs. Ervine
knew the hospital had denied her an interpreter the first time
she visited, in August 2007. “There was no interpreter,” Mr.
Ervine testified during his deposition, “and that was wrong of
the hospital.” In short, according to them, the Ervines’ claims
accrued once, the first time each denied Mrs. Ervine an
interpreter. As that happened more than two years before Mr.
Ervine filed, his suit was untimely, they contended.
To the contrary, asserted Mr. Ervine in opposition, in this
case “each denial of effective communication is a separate
and unique injury starting the clock over each time.” Because
1
Mr. Ervine sued Georges Tannoury, M.D., an individual, as well as
Georges Tannoury, M.D., a domestic corporation. We refer to both,
collectively, as “Dr. Tannoury.” He also sued Specialty Medical Center
and Kerry Malin, its employee. Both have been dismissed and neither is
a party to this appeal.
6 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
Dr. Tannoury and Desert View refused to provide interpreters
as late as March 2009 or August 2009, respectively, his suit
was timely.
The district court granted in part and denied in part the
motion for summary judgment. As relevant here, it denied
summary judgment on statute-of-limitations grounds because
no competent evidence established when the Ervines’ causes
of action accrued. The court declined to consider, as
inadmissible hearsay, entries in a logbook detailing Mrs.
Ervine’s discussions with the Advocacy Resource Center.
On a motion for reconsideration, however, the court
determined that Mr. Ervine had manifested an adoption or
belief in the truth of the logbook statements, rendering them
admissible. See Fed. R. Evid. 801(d)(2)(B). Such, coupled
with his deposition, “establish[ed] that his claims are time-
barred.”
Apparently, the district court agreed with Desert View
and Dr. Tannoury that the Ervines had one claim of
discrimination against each of them, which accrued the first
time each denied the Ervines an interpreter. Despite
acknowledging the argument that “each refusal to provide an
interpreter is an independent discriminatory act,” the court
did not analyze such argument or explain why it was
incorrect.
Mr. Ervine timely appealed.
III
Unlike the other claims, Mr. Ervine brings claims under
Title III of the ADA solely as an individual, not on behalf of
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 7
Mrs. Ervine’s estate. Before turning to the timeliness of his
complaint, we consider whether he has standing to assert such
claims. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d
939, 946 (9th Cir. 2011) (en banc) (“[A] disabled individual
claiming discrimination must satisfy the case or controversy
requirement of Article III by demonstrating his standing to
sue at each stage of the litigation.”).
Neither Desert View nor Dr. Tannoury argued to the
district court that Mr. Ervine lacked standing, and the court
did not discuss standing in its orders. But “standing is not
subject to waiver,” United States v. Hays, 515 U.S. 737, 742
(1995), and “[f]ederal courts are required sua sponte to
examine jurisdictional issues such as standing,” Bernhardt v.
Cnty. of L.A., 279 F.3d 862, 868 (9th Cir. 2002). Moreover,
“every federal appellate court has a special obligation to
satisfy itself not only of its own jurisdiction, but also that of
the lower courts in a cause under review.” Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(internal quotation marks omitted).
Damages are not an available remedy to individuals under
Title III of the ADA; individuals may receive only injunctive
relief. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133,
1136 (9th Cir. 2002) (citing 42 U.S.C. § 12188(a)). So Mr.
Ervine must not only demonstrate the familiar requirements
for standing—injury-in-fact, traceability, redressability—but
also “a sufficient likelihood that he will be wronged again in
a similar way.” Fortyune v. Am. Multi-Cinema, Inc.,
364 F.3d 1075, 1081 (9th Cir. 2004) (quoting City of L.A. v.
Lyons, 461 U.S. 95, 111 (1983)). That is to say, he must
show he faces a “real and immediate threat of repeated
injury.” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496
(1974)).
8 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
An ADA plaintiff establishes such a real and immediate
threat if “he intends to return to a noncompliant place of
public accommodation where he will likely suffer repeated
injury.” Chapman, 631 F.3d at 948; see, e.g., Fortyune,
364 F.3d at 1082 (holding that plaintiff who suffered
discrimination only once was likely to suffer repeat injury
where he returned to place of public accommodation often
and discrimination was pursuant to written policy).
Alternatively, a plaintiff who “has visited a public
accommodation on a prior occasion” demonstrates a real and
immediate threat if he “is currently deterred from visiting that
accommodation by accessibility barriers.” Doran v.
7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008); see also
Pickern, 293 F.3d at 1136–37. Title III of the ADA
“explicitly provides that it does not require ‘a person with a
disability to engage in a futile gesture if such person has
actual notice that a person or organization . . . does not intend
to comply’ with the ADA.” Pickern, 293 F.3d at 1136
(quoting 42 U.S.C. § 12188(a)(1)). When a plaintiff sought
an injunction against a 7-Eleven store 550 miles away from
his home, we held he had standing: he was “currently
deterred from visiting the store”; it was “conveniently located
near his favorite fast food restaurant in Anaheim”; and he
planned to visit Anaheim once a year for his annual trips to
Disneyland. Doran, 524 F.3d at 1038, 1040–41. He did not
intend, however, to visit the 7-Eleven until it removed the
challenged access barriers. Id. at 1041.
Mr. Ervine seeks an injunction ordering Desert View and
Dr. Tannoury to “furnish appropriate auxiliary aids and
services” to him “to ensure effective communication.” 28
C.F.R. § 36.303(c)(1). But he has not expressed any intent to
return to Desert View or to Dr. Tannoury’s practice for
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 9
medical treatment. He admitted in his deposition that he had
never been a patient at Desert View and had no reason to
believe that he would ever be a patient of Desert View in the
near future. And he has not been denied an interpreter in
Pahrump since his wife’s death.
Although he does not intend to return to either medical
provider, Mr. Ervine asserts “that he is currently aware of
barriers to access at Desert View Hospital and Dr.
Tannoury’s, and that these barriers currently deter him.” As
Desert View and Dr. Tannoury point out, such assertions,
made for the first time in his opening brief, are completely
unsupported by the record. Mr. Ervine did not allege in his
complaint that he was deterred from seeking medical services
because of discrimination. Instead, he alleged that he was
denied effective communication when he accompanied his
wife to her appointments, so he was not able “to effectively
understand her medical issues and to better understand how
he could help and support her.” The failure to provide an
interpreter continued “up to and including the date of Mr.
Ervine’s wife’s death,” but not necessarily beyond. And, as
noted, Mr. Ervine has never been a patient of Desert View
and has no imminent plans to return. He cannot manufacture
standing through bald assertion, contradicted by the record.
See Doran, 524 F.3d at 1041 (holding that plaintiff had
standing where his “deposition testimony demonstrate[d] both
. . . deterrence . . . and his intention to return in the future”);
Pickern, 293 F.3d at 1137–38 (holding that plaintiff met
standing requirements by stating in his deposition “that he is
currently deterred from attempting to gain access” to
defendant’s store).
Mr. Ervine also asserts that Desert View is the only
regional hospital where he lives. Using Desert View’s
10 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
services is thus a question of “when,” not “if.” Once again
though, there is no evidence in the record regarding the
number of accessible hospitals near Mr. Ervine, nor their
distance from his home. And even if his assertion is accurate,
it would not show that a visit to Desert View, much less a
failure to provide effective communication to him, is
“certainly impending.” Whitmore v. Arkansas, 495 U.S. 149,
158 (1990). On this record, the prospect that Desert View
“will engage in (or resume)” conduct harmful to Mr. Ervine
is simply “too speculative to support standing.” See Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 190 (2000).
To be clear, Mr. Ervine does not lack standing to pursue
injunctive relief merely because he has never been a patient
of either Desert View or Dr. Tannoury. The ADA’s
implementing regulations impose an obligation on public
accommodations “to provide effective communication to
companions who are individuals with disabilities.” 28 C.F.R.
§ 36.303(c)(1). But it is not the presence or “absence of a
past injury” that determines Article III standing to seek
injunctive relief; it is the imminent “prospect of future
injury.” Chapman, 631 F.3d at 951 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 564 & n.2 (1992)). Mr.
Ervine has not shown a real and immediate threat that he will
be denied effective communication by Desert View or Dr.
Tannoury either as a patient in his own right or as a
companion to another patient.
Because Mr. Ervine’s complaint is “jurisdictionally
defective” and he has failed to introduce any evidence to cure
the defect, he lacks standing to bring his ADA claims. See id.
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 11
at 954.2 The district court should therefore have dismissed
the claims for lack of jurisdiction. See id. at 955; see also
Fed. R. Civ. P. 12(b)(1).
IV
Section 504 of the Rehabilitation Act prohibits
organizations that receive federal funds, including health care
providers, from discriminating against individuals with
disabilities. 29 U.S.C. § 794(a), (b)(3)(A)(ii). Health
providers who receive federal funds must “provide
appropriate auxiliary aids to persons with impaired sensory
. . . skills, where necessary to afford such persons an equal
opportunity to benefit from the service in question.” 45
C.F.R. § 84.52(d). “[A]uxiliary aids may include brailled and
taped material, interpreters, and other aids for persons with
impaired hearing or vision.” Id. § 84.52(d)(3). Unlike Title
III of the ADA, Section 504 permits individuals to seek
damages as a remedy in certain circumstances. See Mark H.
v. Lemahieu, 513 F.3d 922, 930, 938 (9th Cir. 2008). We
must decide whether Mr. Ervine’s claims under the
Rehabilitation Act, brought individually and on behalf of his
wife’s estate, are timely.
The statute of limitations for claims under Section 504 of
the Rehabilitation Act is provided by analogous state law.
Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 823 n.11,
amended, 271 F.3d 910 (9th Cir. 2001). All parties agree that
the analogous state law here is Nevada’s two-year statute of
limitations for personal injuries. Nev. Rev. Stat.
2
Because we conclude that Mr. Ervine lacks standing to bring his ADA
claim, we need not consider Dr. Tannoury’s argument that, having sold his
medical practice, he is not susceptible to such claim.
12 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
§ 11.190(4)(e); cf. Douglas, 271 F.3d at 823 n.11 (“[B]oth
parties agree that California’s one-year statute of limitations
for personnel [sic] injuries governs [plaintiff’s] Section 504
claim.”). Mr. Ervine filed his complaint on September 1,
2010.3 His suit is timely insofar as the claims accrued on or
after September 1, 2008.
Although the limitations period is adopted from state law,
a claim under the Rehabilitation Act accrues according to
federal law. See Bishop v. Children’s Ctr. for Developmental
Enrichment, 618 F.3d 533, 536 (6th Cir. 2010); cf. Wallace v.
Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a
§ 1983 cause of action is a question of federal law that is not
resolved by reference to state law.”). “A federal claim
accrues when the plaintiff knows or has reason to know of the
injury that is the basis of the action.” Pouncil v. Tilton,
704 F.3d 568, 574 (9th Cir. 2012).
A
Our court has not decided whether each discrete
discriminatory act causes a new claim to accrue under Section
504 of the Rehabilitation Act. But we have discussed such
claims under Section 501 of the Act. See Cherosky v.
Henderson, 330 F.3d 1243, 1245–46 (9th Cir. 2003). In
Cherosky, employees of the Postal Service claimed their
employer discriminated against them by refusing to provide
3
Mr. Ervine filed an amended complaint on September 14, 2010, which
the district court described as the date he “filed a complaint.” At present,
it does not matter whether he sued on September 1 or September 14, 2010.
Thus, we assume for the purposes of this opinion that the amended
complaint relates back to the date of the original complaint. See Fed. R.
Civ. P. 15(c).
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 13
respirators. Id. at 1245. Under the relevant federal
regulations, they were required before suing to consult with
the Equal Employment Opportunity Commission “within 45
days of the date of the matter alleged to be discriminatory.”
Id. (quoting 29 C.F.R. § 1614.105(a), (a)(1)). The employees
failed to consult with the EEOC within 45 days of the denial
of respirators, and were unable to “point to any discrete,
discriminatory act that occurred within the 45-day period.”
Id. Nonetheless, they argued their claims were timely under
the “continuing violations doctrine.” Id. at 1246.
We turned to National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), to resolve their claims.
Although Morgan concerned Title VII of the Civil Rights Act
of 1964, we noted that “[i]t applies with equal force to the
Rehabilitation Act and to actions arising under other civil
rights laws.” Cherosky, 330 F.3d at 1246 n.3; see also, e.g.,
Pouncil, 704 F.3d at 581 (applying Morgan to § 1983 free
exercise and Religious Land Use and Institutionalized
Persons Act claims).
Of course, this case is not subject to a 45-day consultation
deadline; it is governed by the statute of limitations borrowed
from state law. Although the deadlines may be different,
there is no reason to suppose that Section 504 claims accrue
differently from Section 501 claims. Both claims accrue
according to federal law. Thus, we also turn to Morgan for
guidance.
Morgan distilled several principles that are relevant to the
claims at issue here:
First, discrete discriminatory acts are not
actionable if time barred, even when they are
14 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new
clock for filing charges alleging that act. . . .
The existence of past acts and the employee’s
prior knowledge of their occurrence, however,
does not bar employees from filing charges
about related discrete acts so long as the acts
are independently discriminatory and charges
addressing those acts are themselves timely
filed. Nor does the statute bar an employee
from using the prior acts as background
evidence in support of a timely claim.
536 U.S. at 113 (emphasis added).
In Pouncil, we emphasized that an act must be “discrete”
or “independently wrongful” to cause a new claim to accrue.
704 F.3d at 581. If the act is merely the “delayed, but
inevitable, consequence” of a prior discriminatory act, it will
not cause a new statute of limitations to run. See id. So, for
example, the claim of a professor who was denied tenure in
a discriminatory fashion accrued when the discriminatory
decision was made, not when the professor’s contract expired.
Id. at 577–78 (discussing Del. State Coll. v. Ricks, 449 U.S.
250 (1980)).
Pouncil maintained that the denial by prison officials in
2008 of his request for a conjugal visit with his second wife
violated his rights under the Free Exercise Clause and
RLUIPA. Id. at 570. Prison officials had previously denied
in 2002 his request for a conjugal visit with his first wife,
each time citing the same prison regulation. Id. We
concluded that the second denial was “a separate, discrete act,
rather than a mere effect of the 2002 denial.” Id. at 581. It
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 15
was an “independently wrongful” act because Pouncil’s claim
did “not rely on any acts that occurred before the statute of
limitations period to establish a violation” of his rights. Id.
Or, as we “put it another way, the 2008 denial relied on a new
application of the regulation to a new request for a conjugal
visit, it did not rely on the 2002 denial as barring all
subsequent requests for conjugal visits.” Id.
We apply these principles to the Rehabilitation Act: So
long as an alleged violation of Section 504 of the
Rehabilitation Act is a discrete and independently wrongful
discriminatory act, it causes a new claim to accrue and a new
limitations period to run. A claim under the Act will not be
untimely merely because similar, even identical, violations of
the Act occurred outside the statutory period.
B
It is beyond dispute that Mr. Ervine alleges a series of
discrete and independently wrongful discriminatory
violations of the Rehabilitation Act. His complaint discusses
Desert View and Dr. Tannoury’s “acts and omission [sic]
including failing or refusing to provide [the Ervines] with
effective communication through interpreters, even after
[they] requested interpreters.” He contends “[d]efendants
failed to afford qualified interpreters at key points in the
treatment process including diagnosis, testing and decisions
requiring informed consent.” And those “violations caused
all [the Ervines’] compensable injury.” See Cherosky,
330 F.3d at 1246 n.4 (“To illustrate the meaning of the term
‘discrete discriminatory act,’ the Court identified the
following examples: ‘termination, failure to promote, denial
of transfer, or refusal to hire.’” (quoting Morgan, 536 U.S. at
122)).
16 ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS
The summary judgment evidence supports such
characterization of their complaint. Logbooks4 from the
Advocacy Resource Center are replete with allegations that
the Ervines were denied an interpreter during particular
medical appointments. And at least one alleged
discriminatory act appears to have taken place in November
2008, within the limitations period. On November 12, the
Center called Dr. Tannoury’s office to inquire whether Mrs.
Ervine would have an interpreter at her November 17
appointment. The office manager’s assistant informed the
Center that Dr. Tannoury’s office, being a private practice,
did not provide sign language interpreters.5
Nothing about the Rehabilitation Act claims suggests that
failure to provide interpreters was merely a delayed but
inevitable consequence of a prior discriminatory decision.
Even if the alleged violations were the result of a
discriminatory policy, that would not render the Ervines’
claims for discrete discriminatory acts untimely. See
Cherosky, 330 F.3d at 1247 (“Just as the wrong in Bazemore
[v. Friday, 478 U.S. 385 (1986),] accrued each time the salary
policy was implemented, the alleged wrong here occurred and
accrued when the policy was invoked to deny an individual
employee’s request.”); see also Pouncil, 704 F.3d at 581.
4
The parties dispute on appeal whether the logbooks are admissible
evidence. We assume, arguendo, that they are.
5
Whether this or any other alleged violation is actually meritorious and
timely is not properly before us. We leave it to the district court to answer
such question in the first instance, using the legal standard we announce
here. Similarly, we leave for the district court to consider the evidentiary
sufficiency of the claims against Desert View.
ERVINE V. DESERT VIEW REG’L MED. CTR. HOLDINGS 17
C
Because each and every discrete discriminatory act causes
a new claim to accrue under Section 504 of the Rehabilitation
Act, any discriminatory acts that Desert View or Dr.
Tannoury took after September 1, 20086 are actionable. “All
prior discrete discriminatory acts,” however, “are untimely
filed and no longer actionable.” Morgan, 536 U.S. at 115.
V
Mr. Ervine lacks standing to bring his claims under Title
III of the ADA. We vacate the grant of summary judgment
as to those claims, and remand with instructions to dismiss
them without prejudice for lack of jurisdiction.
The district court erred in finding the claims under
Section 504 of the Rehabilitation Act untimely. Because we
are returning the Rehabilitation Act claims to the district
court for proceedings not inconsistent with our opinion, we
also return the state law claims, which no party has discussed.
VACATED in part, REVERSED in part, and
REMANDED. Each party shall bear its own costs on appeal.
6
See supra note 3.