Wimberly v. Atlantic Dialysis Management Services, LLC

Background

Jason Wimberly, proceeding without a lawyer, sued Atlantic Dialysis Management Services, LLC, his dialysis provider. Wimberly alleged that he has kidney failure and related disabilities and relies on Medicaid-funded transportation to attend dialysis appointments. He alleged that Atlantic failed to arrange or facilitate transportation by entering the Medicaid standing orders needed for that transportation.

Wimberly also alleged that he discussed transportation concerns with other patients, complained to Atlantic staff, and threatened legal action. He described an incident in which an Atlantic employee told another patient not to listen to what others said because it was gossip. Wimberly later complained about communications from Atlantic employees concerning meetings, alleged harassment, and discussing the litigation with other patients.

Claims and legal standard

Wimberly asserted claims under the Americans with Disabilities Act, the Rehabilitation Act, the New York State Human Rights Law, the New York City Human Rights Law, a federal regulation governing dialysis facilities, and New York Public Health Law. He also asserted claims for negligent and intentional infliction of emotional distress and breach of fiduciary duty. Atlantic moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint alleges enough facts to state a plausible legal claim.

The court construed Wimberly’s filings liberally because he was representing himself, but explained that a self-represented complaint still must state a plausible claim for relief.

Disability-discrimination claims

The court considered two possible theories under the Americans with Disabilities Act and the Rehabilitation Act: that entering standing orders was a service Atlantic provided, and that failing to enter them prevented Wimberly from accessing Atlantic’s facility.

Under the first theory, the court assumed for purposes of the motion that entering standing orders could be treated as an Atlantic service. It nevertheless held that the claim could not proceed because standing orders were a service provided exclusively to people with disabilities. The disability statutes require equal treatment between disabled and nondisabled people; they do not generally require a provider to meet the particular needs of one disabled person compared with other disabled people. Wimberly alleged that he was eligible for the standing orders because of his disability, so he had not alleged that Atlantic denied the service because of his disability.

Under the second theory, the court held that Wimberly had not alleged that Atlantic’s facility itself was inaccessible. He regularly visited the facility and used its services. The alleged barrier was the cost and inconvenience of arranging transportation, which was provided through New York’s Medicaid program rather than by Atlantic. The court held that the Americans with Disabilities Act and the Rehabilitation Act did not require Atlantic to provide free transportation or to enter Medicaid standing orders in these circumstances. The court also rejected Wimberly’s argument that inadequate transportation he received supported a disability claim.

The court further held that Wimberly had not alleged intentional disability discrimination because the complaint did not plausibly suggest that any alleged hostility was motivated by his disability. Counts V and VII were dismissed with prejudice.

Retaliation claims

The court held that Wimberly plausibly alleged protected activity because requests for disability accommodations, complaints about their denial, and threats to sue can qualify as protected conduct. But he did not plausibly allege an adverse action, meaning conduct serious enough to deter a reasonable person from asserting legal rights.

The alleged instruction to another patient, request for a meeting, warning about discussing the litigation, and letter concerning alleged harassment did not show a reduction in care or services, enforcement of the request, or any other consequence. The court therefore dismissed the Americans with Disabilities Act and Rehabilitation Act retaliation claims, Counts VI and VIII, with prejudice.

Federal regulation claim

The court held that 42 C.F.R. § 494.70 does not create a private right of action, meaning it does not authorize an individual to sue directly for an alleged violation. Count IX was dismissed with prejudice.

State-law claims and other motions

After dismissing all federal-law claims, the court declined to exercise supplemental jurisdiction over Wimberly’s remaining state-law claims. Counts I, II, III, IV, X, XI, XII, and XIII were dismissed without prejudice to refiling in state court.

The court held that amendment of the federal claims would be futile and therefore did not grant leave to amend. It denied Wimberly’s motion to disqualify Atlantic’s counsel and denied his letter motion for leave to file a surreply. It denied his motion for a declaratory judgment with prejudice as to the federal-law claims and without prejudice as to the state-law claims.

Disposition

The court granted Atlantic’s motion to dismiss. Counts V, VI, VII, VIII, and IX were dismissed with prejudice, and all other counts were dismissed without prejudice. The court directed the Clerk to enter a judgment of dismissal and close the case.