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United States Court of Appeals, Second Circuit.

Wanna BERRY-MAYES, as administrator of the estate of Andre Berry, Plaintiff-Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant-Appellee.

No. 17-977-cv

Decided: February 28, 2018

PRESENT: REENA RAGGI, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges. APPEARING FOR APPELLANT: ANDREW ROZYNSKI, Eisenberg & Baum, LLP, New York, New York. APPEARING FOR APPELLEE: ELIZABETH I. FREEDMAN (Claude S. Platton, on the brief ), on behalf of Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.


Plaintiff Wanna Berry-Mayes appeals from an award of summary judgment dismissing this action on behalf of the estate of her deceased uncle, Andre Berry, against the New York City Health and Hospitals Corporation (“HHC”), for violations of the Americans with Disabilities Act (“ADA”), see 42 U.S.C. § 12101 et seq., the Rehabilitation Act (“Rehab Act”), see 29 U.S.C. § 794, as well as state and municipal human rights laws, see N.Y. Exec. Law § 290 et seq.; N.Y.C. Admin. Code § 8-101 et seq. Berry-Mayes alleges that staff at two HHC facilities, Lincoln and Jacobi Hospitals, failed to provide Andre Berry, who was deaf and suffering from end-stage renal disease, diabetes, hypertension, and HIV, with reasonable accommodations necessary to ensure effective communication concerning his care.

In granting summary judgment to HHC, the district court concluded that HHC had adduced convincing evidence of reasonable accommodation, as to which Berry-Mayes failed to raise a genuine issue of fact. The district court further concluded that Berry-Mayes had failed to raise an issue of deliberate indifference necessary for compensatory damages and, in any event, was not entitled to a declaratory judgment. Finally, the court declined to exercise supplemental jurisdiction over the state and municipal claims.

On appeal, Berry-Mayes does not challenge the district court’s adverse declaratory judgment ruling, thereby abandoning any argument she might have as to such relief. See Higazy v. Templeton, 505 F.3d 161, 168 n.7 (2d Cir. 2007) (“An argument or an issue that is not raised in the appellate brief may be considered abandoned.”). She argues only that she produced evidence sufficient to raise genuine disputes as to reasonable accommodation and deliberate indifference. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm for lack of evidence of deliberate indifference.

The parties agree that to recover compensatory damages, Berry-Mayes must demonstrate that HHC acted with deliberate indifference to Andre Berry’s federally protected rights. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009).1 A defendant acts with deliberate indifference when it (1) “ha[s] actual knowledge of discrimination against” the disabled person, (2) “ha[s] authority to correct the discrimination,” and (3) “fail[s] to respond adequately.” Id. at 276. Although deliberate indifference does not require proof of “personal animosity or ill will,” id. at 275, as the phrase suggests, the evidence must show “deliberate choice[,] rather than negligence or bureaucratic inaction,” id. at 276. In Loeffler, we identified a triable issue of deliberate indifference from evidence that a hospital ignored, and, in some instances, “laughed off” numerous requests over an eleven-day period to provide a sign-language interpreter for a deaf patient. Id.

That is not this case. The record shows that notices of free sign-language interpretation services were posted throughout the hospitals’ common areas and patient units, as well as in the patient handbook. More to the point, Andre Berry was provided with a sign-language interpreter on no fewer than fourteen occasions. As for times when he was not, hospital staff thoroughly and meticulously documented Andre Berry’s communication abilities. Although the parties dispute the extent to which Andre Berry could communicate by reading lips or using his hearing aid, it is undisputed that he had at least some ability to communicate other than through sign language. Indeed, although neither Berry-Mayes nor her mother Denise Berry knew sign language, both women communicated with Andre Berry verbally and through gestures. Moreover, when Denise Berry requested an interpreter on October 23, 2013, the hospital provided one, who worked with Andre Berry for three hours, despite his express refusal of interpreter services earlier that same day. Hospital records further indicate that an interpreter translated for Andre Berry twice on the following day, October 24, as well as on October 26, 27, and 28.

This record is so distinguishable from that in Loeffler that, even if federal law demands greater accommodation, there is no evidentiary basis for finding that the failure to provide that accommodation here was based on HHC’s deliberate indifference to Andre Berry’s needs.

Accordingly, the district court correctly concluded that Berry-Mayes could not succeed on a claim for compensatory damages. That being the only relief at issue on this appeal, we need not decide whether the challenged judgment is further supported by the lack of a triable issue as to reasonable accommodation.

We have considered Berry-Mayes’s other arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.


1.   Although a member of the panel raised the question of nominal damages at oral argument, the record shows that Berry-Mayes never requested nominal damages in opposing summary judgment in the district court or in seeking relief on appeal. We, therefore, deem such an argument forfeited and here consider only whether Berry-Mayes sufficiently demonstrated the deliberate indifference necessary for compensatory damages.

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