Crossett v. Lakeview Hospital, et al.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, NORTHERN DIVISION CROSSETT, REPORT AND RECOMMENDATION GRANTING [14] MOTION TO DISMISS Plaintiff, AND v. ORDER GRANTING [17] MOTION TO QUASH LAKEVIEW HOSPITAL, et al., Case No. 1:25-cv-00061-DAK-CMR Defendants.

Judge Dale A. Kimball Magistrate Judge Cecilia M. Romero

This matter is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) (ECF 21).

Pro se Plaintiff David D. Crossett’s (Plaintiff or Mr. Crossett) Complaint (ECF 1) asserts claims under Title III of the Americans with Disabilities Act (ADA) (ECF 1-1). Before the court is a Motion to Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Motion to Dismiss) (ECF 14) filed by Defendant Lakeview Hospital (Lakeview). Also before the court is a Motion to Quash Service of Process pursuant to Rule 12(b)(5) (Motion to Quash) (ECF 17) filed by Defendants Troy Wood, Emily Evers, and Olivia Roper (collectively, Individual Defendants). Having carefully considered the relevant filings, the court finds that oral argument is not necessary and will decide the Motion to Dismiss and Motion to Quash (the Motions) on the basis of written memoranda. See DUCivR 7-1(g). For the reasons set forth below, the undersigned RECOMMENDS that Lakeview’s Motion to Dismiss (ECF 14) be GRANTED and ORDERS that the Individual Defendants’ Motion to Quash (ECF 17) be GRANTED.

I. BACKGROUND While not entirely clear from the Complaint, but construing Plaintiff’s Complaint and exhibits liberally,1 Plaintiff asserts ADA claims for discrimination and retaliation and state law claims2 arising from his medical care at Lakeview (ECF 1 at 4; ECF 1-4 at 2). Specifically, Plaintiff alleges that on May 9, 2025, the day after his surgery at Lakeview, he “requested a reasonable accomodation to use a recording device because [he is] blind and unable to memorize or take notes in a conversation” (id. at 4). Plaintiff alleges that Defendant Evers, a patient advocate, discriminated against him because she “refused at the very onset to . . . accommodate [him], did not engage in any kind of required mandated dialogue, and rejected [his] request for a reasonable accomodation to use a recording device” (id.; ECF 1-3). Plaintiff further alleges that on May 11, 2025, Defendant Roper, a charge nurse, retaliated against him for asserting his rights when she interrupted his discharge, raised her voice, dismissed his concerns, and involved hospital security (ECF 1-4). Plaintiff asks for $100,000 in compensatory damages, $300,000 in medical costs, and punitive damages (id. at 5). Plaintiff also seeks injunctive relief in the form of a court order “requir[ing] the lakeview hospital to retrain its entire staff concerning Americans with disabilty act, laws violation and reasonable accommodations” (id.).

Lakeview filed the present Motion to Dismiss (ECF 14) and the Individual Defendants filed the Motion to Quash (ECF 17) on June 2, 2025. The deadline to file a response to the Motions

However, “[t]his liberal treatment is not without limits, and ‘this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.’” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)). The court reviews the Complaint in light of these standards.

II. DISCUSSION4 A. Failure to State a Claim Lakeview moves for dismissal of Plaintiff’s ADA claims5 pursuant to Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim upon which relief may be granted if it does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

Utah Sept. 29, 2017) (dismissing state law claims for lack of subject matter jurisdiction and remaining federal claims for failure to state a claim). 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plaintiff bears the burden of demonstrating that the Complaint meets this standard. See Olson v. Carmack, 641 F. App’x 822, 826–27 (10th Cir. 2016) (citing Twombly, 550 U.S. at 556).

Lakeview seeks dismissal of Plaintiff’s claim for money damages under Title III of the ADA for failure to state a claim. Title III of the ADA prohibits discrimination against individuals with disabilities in the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accomodation. 42 U.S.C. § 12182(a). It is well established that “Title III of the ADA does not provide for a private cause of action for damages.” Ajuluchuku v. Zions Bancorporation, No. 2:05CV906 DAK, 2006 WL 2668709, at *2 (D. Utah Sept. 14, 2006) (citing 42. U.S.C. § 12188(a)(1)). Rather, “Title III of the ADA only allows for injunctive relief[.]”

Shelton v. Cafe Rio, Inc., No. 1:17-CV-00070, 2017 WL 4402425, at *2 (D. Utah Oct. 2, 2017).

Lakeview moves to dismiss Plaintiff’s claim for punitive, compensatory, and economic damages on the ground that Title III does not provide for such relief (ECF 14). The court agrees that Plaintiff’s claim for money damages under the Title III of the ADA is subject to dismissal for failure to state a claim.

Lakeview also seeks dismissal of Plaintiff’s claim for injunctive relief under Title III of the ADA. To state a claim under Title III of the ADA, “a plaintiff must establish that (1) he or she is disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of public accommodation; and (3) that the defendants discriminated against the plaintiff within the meaning of the ADA.” Kaveh v. Starbucks Corp., No. 2:24-CV-00291, 2025 WL 308256, at *2 (D. Utah Jan. 3, 2025), report and recommendation adopted, No. 2:24-CV-00291-AMA-DAO, 2025 WL 306041 (D. Utah Jan. 27, 2025) (quoting Martinez for Anderson v. Lea Reg’l Hosp. LLC, No. 2:21-CV-1191-WJ-GJF, 2022 WL 17584023, at *5 (D.N.M. Dec. 12, 2022)).

To establish the first element, the plaintiff “must show that he has a physical or mental impairment and that the impairment substantially limits a major life activity.” Singh v. Peppermill Casino, No. 2:04-CV-1169 TS, 2006 WL 288421, at *1 (D. Utah Feb. 7, 2006) (citing Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 194–95 (2002)). “Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity.” Id. (quoting Toyota Motor, 534 U.S. at 195). Here, Plaintiff alleges that he has a “visual impairment” and that he is “blind and unable to memorize and take notes in conversation” (ECF 1 at 4). However, Plaintiff fails to identify his visual impairment or specify any other physical or mental impairment that would impact his ability to memorize or take notes. It is also unclear how a visual impairment would inhibit his ability to receive and process audible information from healthcare staff. The court thus finds that Plaintiff has failed to provide sufficient facts to allege the first element.

It does not appear that the second element is in dispute as Lakeview acknowledges that private hospitals like Lakeview are considered “places of public accomodation” under Title III of the ADA (ECF 14 at 4 (citing 42 U.S.C. § 12181)).

Finally, regarding the third element, “[d]iscrimination includes the ‘failure to make reasonable modifications in policies, practices, or procedures,’ when such modifications are necessary accommodations to individuals with disabilities.” Kaveh, 2025 WL 308256, at *2 (quoting 42 U.S.C. § 12182(b)(2)(A)(ii)). Here, Plaintiff makes only conclusory allegations of discrimination and retaliation by hospital staff at Lakeview. Moreover, Plaintiff has failed to provide sufficient facts to suggest that the requested accomodation was reasonable or necessary to accommodate his disability. Plaintiff has therefore failed to adequately allege the third element.

For these reasons, Plaintiff’s ADA claims against Lakeview as currently pled are subject to dismissal. However, the court will not dismiss a pro se complaint unless it is obvious amendment would be futile, which is not clear is the case here. See Kay, 500 F.3d at 1217. Accordingly, the undersigned RECOMMENDS that Lakeview’s Motion (ECF 14) be GRANTED, Plaintiff’s ADA claims against Lakeview be dismissed without prejudice, and Plaintiff be granted an opportunity to amend his Complaint.

B. Insufficient Service of Process The Individual Defendants ask the court to quash service of process pursuant to Rule 12(b)(5). Under Rule 12(b)(5), the “defendant may object to plaintiff’s failure to comply with the procedural requirements for proper service set forth and incorporated by Rule 4.” Moomey v. Express Messenger Sys., Inc., No. 221CV00575DAKJCB, 2021 WL 5772268, at *2 (D. Utah Dec. 6, 2021) (quoting Richardson v. Alliance Tire & Rubber Co., 158 F.R.D. 475, 477 (D. Kan. 1994)).

Motions under Rule 12(b)(5) “differ from the other motions permitted by Rule 12(b) somewhat in that they offer the district court a course of action—quashing the process without dismissing the action—other than simply dismissing the case when the defendant's defense or objection is sustained.” Id. (quoting Williams v. Pub. Serv. Co. of N.M., No. CIV-05-0660JBLAM, 2005 WL 3662906, at * 2 (D.N.M. Nov. 7, 2005)). “The plaintiff has the burden of establishing validity of service.” Id. (citing Fed. Deposit Ins. Corp. v. Oaklawn Apts., 959 F.2d 170, 174 (10th Cir. 1992)).

Rule 4 provides in relevant part that an individual may be served by: “(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e).

Here, the Individual Defendants argue that service was insufficient because Plaintiff failed to personally serve each Individual Defendant as required by Rule 4(e) (ECF 17 at 3). Indeed, it appears Plaintiff delivered the Summons and Complaint to an individual named “Tristan/Anne” at Lakeview (ECF 9–11), a nonparty who is not Individual Defendants’ authorized agent (ECF 17 at 4). As noted above, Plaintiff did not meaningfully address the arguments in the Motion to Quash in his Response (ECF 23). However, the court finds that under the circumstances of this case that the deficiencies in service of process are curable and that the proper remedy in this case is to allow Plaintiff an opportunity to personally serve each Individual Defendant if an amended complaint is filed. See Moomey, 2021 WL 5772268, at *2 (“[W]hen a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant.” (quoting Pell v. Azar Nut Co., Inc., 711 F.2d 949, 950 n.2 (10th Cir. 1983))). The court therefore GRANTS the Individual Defendants’ Motion to Quash (ECF 17) and grants Plaintiff 30 days after an amended complaint is filed to properly serve the Individual Defendants.

ORDER IT IS HEREBY ORDERED that the Individual Defendants’ Motion to Quash (ECF 17) is GRANTED, service of process against the Individual Defendants is quashed, and Plaintiff is granted 30 days after an amended complaint is filed to properly serve the Individual Defendants.

RECOMMENDATION IT IS HEREBY RECOMMENDED that Lakeview’s Motion to Dismiss (ECF 14) be GRANTED, Plaintiff's claims be dismissed without prejudice, and Plaintiff be granted an opportunity to amend his Complaint, and that an amended complaint must be filed within 30 days.

NOTICE Copies of the foregoing Report and Recommendation are being sent to all parties who are hereby notified of their right to object. Within fourteen (14) days of being served with a copy, any party may serve and file written objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Failure to object may constitute a waiver of objections upon subsequent review.

DATED this 21 January 2026.

Magistrate Judge Md M. Romero United States District Court for the District of Utah