Bayside Nursing Home, Inc. v. Milwaukee County, Civ. A. No. 74-C-11.

• Decision Date: 13 August 1975
• Docket Number: Civ. A. No. 74-C-11.
• Citation: 396 F. Supp. 1289
• Parties: BAYSIDE NURSING HOME, INC., a Wisconsin Corporation, for and on behalf of itself and all nursing homes similarly situated located in the County of Milwaukee, State of Wisconsin, Plaintiffs, v. MILWAUKEE COUNTY, a Municipal Body Corporate, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

396 F. Supp. 1289

BAYSIDE NURSING HOME, INC., a Wisconsin Corporation, for and on behalf of itself and all nursing homes similarly situated located in the County of Milwaukee, State of Wisconsin, Plaintiffs, v. MILWAUKEE COUNTY, a Municipal Body Corporate, et al., Defendants.

Civ. A. No. 74-C-11.

United States District Court, E. D. Wisconsin.

August 13, 1975.

Thomas J. Bergen, Milwaukee, Wis., for plaintiffs.

Gerald G. Pagel, Asst. Corp. Counsel, Milwaukee, Wis., for defendants Milwaukee County, Milwaukee County Department of Public Welfare, and Arthur Silverman.

Kevin E. O'Neill, Milwaukee, Wis., for defendant Hahn.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action involving the issue of what role the Milwaukee County Department of Public Welfare ("DPW") and its agents have with respect to nursing home patients cared for by plaintiff Bayside Nursing Home, Inc., ("Bayside"). The complaint contains several claims, among which are that DPW's manner of investigating patient care denies Bayside due process, and that DPW is barred from any investigative role with respect to patients cared for under Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq. The complaint seeks declaratory and injunctive relief, as well as damages.

Defendants have filed motions to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. Rule 12(b)(1), (6), Federal Rules of Civil Procedure. For the reasons hereinafter indicated, the complaint does fail to state a claim and must be dismissed.^*

The complaint alleges that on September 12, 1973, defendant Allan Hahn, a social worker employed by DPW, entered Bayside's premises and observed a mentally retarded male patient being shaved with a safety razor. Hahn allegedly observed a cut on the patient's face and reported this to his supervisor. The next day Hahn and his supervisor came and examined the patient, and the supervisor allegedly could find no evidence of a cut. Bayside was allegedly denied a copy of Hahn's report to his supervisor.

Hahn is claimed to have then filed a complaint which led to a state investigation of Bayside and the subsequent removal of the patient "without the knowledge and consent of the parents of the patient, in violation of free choice of nursing home care as provided in the Social Security legislation on Medicaid. That in addition thereto, the said patient was removed, allegedly for cause, without a proper hearing, pursuant to the Fourteenth Amendment of the United States Constitution, more particularly, the due process clause contained therein."

The complaint further alleges that on September 19, 1973, Hahn entered Bayside's premises and went to the room of an emotionally disturbed female patient who, after a few minutes, became upset and started shouting and screaming. Hahn then left her room and the patient had to be calmed.

Finally, the complaint alleges that on January 3, 1974, Hahn overheard a conversation concerning a patient who had not arrived at a job and remarked, "Oh, so you have lost another patient!" Hahn allegedly then telephoned his office and within four hours his supervisor called agents of Bayside to determine whether a patient was missing.

Bayside's due process claim appears to arise out of the removal of the patient after a state investigation, allegedly precipitated by Hahn's complaint. The complaint does not, however, allege that Hahn or any other defendant actually decided to remove the patient. Instead, it appears that the patient was removed by the Wisconsin Department of Health and Social Services pursuant to § 146.30(3)(c), Wis.Stats. (1973). See, Ross v. Lucey, 349 F.Supp. 264 (E. D.Wis.1972). The court does not believe that the allegation that Hahn filed a complaint is sufficient to make Hahn or any other defendant responsible for any violation of Bayside's due process rights which might have occurred. The complaint,...