Fiers v. La Crosse Cnty.

• Decision Date: 17 September 2015
• Docket Number: No. 15–cv–88–jdp.,15–cv–88–jdp.
• Parties: Joanne FIERS, Special Administrator for the Estate of Richard Bendel, Plaintiff, and Wisconsin Department of Health Services, c/o HMS Wisconsin Casualty Recovery, Involuntary Plaintiff, v. LA CROSSE COUNTY, d/b/a Lakeview Health Center; Mississippi Valley Health Services Commission, d/b/a Lakeview Health Center; Wanda Plachecki; West Bend Mutual Insurance Company; Jeremy Holm ; Lilli Lein; and Janet Loy–Minor, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

132 F.Supp.3d 1111

Joanne FIERS, Special Administrator for the Estate of Richard Bendel, Plaintiff,

and

Wisconsin Department of Health Services, c/o HMS Wisconsin Casualty Recovery, Involuntary Plaintiff,

v.LA CROSSE COUNTY, d/b/a Lakeview Health Center; Mississippi Valley Health Services Commission, d/b/a Lakeview Health Center; Wanda Plachecki; West Bend Mutual Insurance Company; Jeremy Holm ; Lilli Lein; and Janet Loy–Minor, Defendants.

No. 15–cv–88–jdp.

United States District Court, W.D. Wisconsin.

Signed Sept. 17, 2015.

Filed Sept. 18, 2015.

Joel E. Smith, Mark R. Kosieradzki, Andrew D. Gross, Kosieradzki Smith Law Firm, Plymouth, MN, Terry A. Davis, Rice, Heitman & Davis, S.C., Sparta, WI, for Plaintiff.

Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI, for Involuntary Plaintiff.

Stephen Oliver Plunkett, Steven P. Aggergaard, Bassford Remele, Minneapolis, MN, for Defendants.

OPINION & ORDER

JAMES D. PETERSON

, District Judge.

Richard Bendel resided at Lakeview Health Center, a skilled nursing facility operated by defendants La Crosse County and the Mississippi Valley Health Services Commission. Mr. Bendel suffered from severe dementia

and he was a known elopement risk. In February, 2014, he wandered off and fell, suffering fatal injuries. Plaintiff Joanne Fiers is Mr. Bendel's sister and the administrator of his estate. She asserts state-law claims for negligence and punitive damages. The case is in federal court because she also brings a claim under 42 U.S.C. § 1983, alleging that defendants violated Mr. Bendel's rights under the Federal Nursing Home Reform Act.

Defendants move to dismiss Fiers's claims for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6)

. Dkt. 21. Defendants contend that: (1) as a threshold matter, the court should dismiss Count I because the Federal Nursing Home Reform Act, 42 U.S.C. § 1396r (FNHRA)

, does not provide a basis for a 42 U.S.C. § 1983 claim; (2) alternatively, the court should dismiss Count I because Fiers has failed to sufficiently plead that an underlying "custom" or "policy" caused the alleged federal rights violations; (3) the court should dismiss Count I because Fiers's allegations generally fail to state a claim upon which relief may be granted; and (4) the court should dismiss Counts II, III, and IV because Fiers failed to comply with Wis. Stat. § 893.80. Id. The first issue is decisive. The court will grant defendants' motion to dismiss Count I and it will decline to exercise supplemental jurisdiction over Counts II–IV.

Defendants also move the court for an order striking materials Fiers submitted in opposition to defendants' motion to dismiss because they fall outside of the pleadings. Dkt. 32. In light of the court's disposition of defendants' motion to dismiss, the court will deny defendants' motion to strike as moot.

ALLEGATIONS OF FACT

When evaluating the motions before the court, the "court must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiff's favor." Transit Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir.2001)

. Accordingly, the facts that follow are drawn from the Amended Complaint.

Defendants La Crosse County and the Mississippi Valley Health Services Commission own and operate Lakeview Health Center as a "skilled," Medicaid-certified nursing facility which receives federal funding under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396

–1396v.

Defendants are all affiliated with Lakeview Health Center and include La Crosse County d/b/a Lakeview Health Center, the Mississippi Valley Health Services Commission d/b/a Lakeview Health Center, Wanda Plachecki (Lakeview Health Center Administrator), Janet Loy–Minor (Lakeview Health Center Director of Nursing), Lilli Lein (Lakeview Health Center certified nursing assistant), Jeremy Holm (Lakeview Health Center certified nursing assistant), and West Bend Mutual Insurance Company, which provides liability insurance coverage to La Crosse County and the Mississippi Valley Health Services Commission with respect to Lakeview Health Center.

Staff at Lakeview Health Center knew that Mr. Bendel: (1) suffered from vascular dementia

; (2) was an "elopement risk"; and, as a result, (3) required increased supervision. On February 16, 2014, defendant Jeremy Holm, a certified nursing assistant, observed Mr. Bendel walking toward the nursing home's north exit but failed to ensure that Mr. Bendel did not exit the facility. Defendant Holm and defendant Lilli Lein, also a certified nursing assistant, ignored the exit door's audible alarm as Mr. Bendel left. Mr. Bendel walked across a roadway, tripped on a curb, fell, and sustained serious injuries. He died approximately four days later. Several days after Mr. Bendel's death, the Wisconsin Department of Health and Human Services investigated the "elopement incident" and cited Lakeview Health Center with an "Immediate Jeopardy" violation.

Fiers alleges deprivation of civil rights, pursuant to 42 U.S.C. § 1983

, against defendants La Crosse County and the Mississippi Valley Health Services Commission; common law negligence against defendants Lein and Holm (asserted vicariously against defendants La Crosse County and the Mississippi Valley Health Services Commission); professional negligence against defendants La Crosse County, the Mississippi Valley Health Services Commission, Plachecki, and Loy–Minor; and a claim for punitive damages.

ANALYSIS

The court has original jurisdiction over Fiers's 42 U.S.C. § 1983

claim, pursuant to 28 U.S.C. § 1331, because it raises a federal question. The court may exercise supplemental jurisdiction over Fiers's remaining state law claims because the claims are so related to Fiers's section 1983 claim that they form part of the same case or controversy, pursuant to 28 U.S.C. § 1367(a).

Because defendants answered before moving to dismiss pursuant to Rule 12(b)(6)

, the court necessarily construes defendants' motion as one for judgment on the pleadings, pursuant to Rule 12(c). Fed.R.Civ.P. 12(b), (c) ; Forseth v. Vill. of Sussex, 199 F.3d 363, 367 (7th Cir.2000). Judgment on the pleadings is appropriate only when "it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Forseth, 199 F.3d at 368 (citing Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989) ). The court reviews motions for judgment on the pleadings pursuant to Rule 12(c) under the same standard as motions to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), although under Rule 12(c) the court considers all the pleadings and not just the complaint. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir.1998). The court views the facts pleaded in the complaint in the light most favorable to the non-moving party—in this case, Fiers—and will grant the motion only if it appears that Fiers is unable state a claim upon which relief may be granted. Buchanan–Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.2009). In the event Fiers can prove no set of facts that would entitled her to relief—namely, in the event Fiers is unable to maintain a claim for violations of the FNHRA via section 1983 —judgment on the pleadings on Count I is appropriate. See Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). "The essence of the motion is not that the plaintiff has pleaded insufficient facts, it is that even assuming all of her facts are accurate, she has no legal claim." Brown v. Pick 'N Save Food Stores, 138 F.Supp.2d 1133, 1136–37 (E.D.Wis.2001) (citing Payton v. Rush–Presbyterian–St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999) ).

The threshold question is whether 42 U.S.C. § 1983

provides a cause of action for violations of the FNHRA. Because the court will ultimately conclude that Fiers does not have a cause of action under section 1983, the court will dismiss Count I. Because Fiers's only federal claim is dismissed, the court will decline to exercise supplemental jurisdiction over Counts II–IV.

A. The FNHRA does not confer federal rights enforceable under section 1983

Fiers may allege a claim for violations of the FNHRA via section 1983

if and only if the FNHRA creates and confers federal rights. Section 1983 provides a cause of action to enforce individual rights conferred by federal statute as well as the Constitution.¹

City of Rancho Palos

Verdes v. Abrams,

544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005) (citing Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) ). "[T]o seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. " Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (emphasis in original) (citing Golden State Transit Corp. v. L.A., 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) ).

Under Blessing, courts consider three factors when determining whether a federal statute creates and confers a federal right: (1) "Congress must have intended that the provision in question benefit the plaintiff"; (2) the asserted right must not be "so vague and amorphous that its enforcement would strain judicial competence"; and (3) "the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms." Planned Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't of Health, 699 F.3d 962, 972–73 (7th Cir.2012)

(quoting Blessing, 520 U.S. at 340–41, 117 S.Ct. 1353 ).

In Gonzaga University v. Doe, the Supreme Court clarified the Blessing factors, holding that federal statutes must unambiguously create and confer federal rights to support a cause of action under section 1983

. 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Post-Gonzaga, the Blessing factors "are meant to set...