Moyer v. Berks Heim Nursing Home

• Decision Date: 19 March 2014
• Docket Number: CIVIL ACTION No. 13-cv-4497
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: ROGER LESLIE MOYER and GLEN ALLEN MOYER, as Co-Executors and Administrators of the ESTATE OF BETTY MOYER, deceased, Plaintiff, v. BERKS HEIM NURSING HOME and COUNTY OF BERKS, Defendants.

ROGER LESLIE MOYER and GLEN ALLEN MOYER,as Co-Executors and Administrators of the ESTATE OF BETTY MOYER, deceased, Plaintiff, v. BERKS HEIM NURSING HOME and COUNTY OF BERKS, Defendants.

CIVIL ACTION No. 13-cv-4497

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 19, 2014

MEMORANDUM

STENGEL, J.

Roger and Glen Moyer, plaintiffs, bring this action in their capacity as co-executors of the estate of their mother, Betty Moyer. Plaintiffs allege that defendants violated Ms. Moyer's civil rights, and they assert claims pursuant to 42 U.S.C. § 1983 through the mechanism of Pennsylvania's wrongful death and survival statutes. Plaintiffs also include state law claims for medical malpractice. Defendants have moved to dismiss the complaint. For the reasons that follow, I will the counts for medical malpractice which are barred by sovereign immunity. Otherwise, the motion is denied.

I. BACKGROUND

Betty Moyer was a resident at the Berks Heim Nursing Home in Leesport, Pennsylvania. The nursing home is owned and operated by Berks County, Pennsylvania. Plaintiffs allege that defendants provided Ms. Moyer with inadequate care in violation ofMs. Moyer's rights guaranteed by the Federal Nursing Home Reform Amendments (FNHRA).¹ As a result of these violations, Ms. Moyer fell eleven times sustaining various injuries.² The nursing home informed plaintiffs of the falls for the first time on January 24, 2013. On March 13, 2013, Ms. Moyer passed away at the age of eighty-eight. The Berks County Register of Wills appointed plaintiffs co-executors of Ms. Moyer's estate on April 18, 2013.

II. STANDARD OF REVIEW

A complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not contain detailed factual allegations, but a plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief as prescribed by Rule 8(a)(2). Id. at 1965; Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89 (2007), and all reasonable inferences permitted by the factual allegations, Watson v.Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff. Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). The court is not, however, "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quotations and citations omitted). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiffs' claim is "plausible on its face," a complaint will survive a motion to dismiss. Bell Atlantic Corp., 127 S. Ct. at 1965, 1974; Victaulic Co. v. Tieman, 499 F.3d 227, 234-35 (3d Cir. 2007).

III. DISCUSSION

A. § 1983 Wrongful Death and Survival Claims

Counts I and II assert § 1983 claims based on the FNHRA. Since Ms. Moyer is deceased, plaintiffs prosecute these claims by way of Pennsylvania's wrongful death and survival statutes. There is no real dispute that the FNHRA creates individual rights which are enforceable through § 1983. Rather, defendants contend that civil rights violations cannot serve as the basis of a state law wrongful death action. With regard to the survival action, defendants believe they are entitled to sovereign immunity. To the contrary, the plaintiffs have pleaded a plausible claim for relief.

The Civil Rights Act of 1871 authorizes civil actions against any person who under color of state law deprives another person of the rights guaranteed under the Constitution or Laws of the United States. 42 USC § 1983. The statute does not create any substantive rights; rather, it provides "a method for vindicating federal rightselsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)). Thus, the plaintiff must identify the federally guaranteed right the defendant violated. Id. at 271 (citing Graham v. Connor, 490 U.S. 386, 394 (1989).³

Here, plaintiffs allege that defendants violated the decedent's federally guaranteed rights under the FNHRA. 42 U.S.C. § 1396r. The FNHRA established quality of care and resident rights requirements which nursing homes must meet in order to participate in the Medicaid and Medicare programs. Grammer v. John J Kane Regional Centers - Glen Hazel, 570 F.3d 520, 523 (2009). The Third Circuit has held that the FNHRA creates individual rights for residents of nursing homes which are enforceable through § 1983. Id. at 532. Plaintiffs plead numerous facts which if proven would tend to show that the county's care of the Ms. Moyer violated her rights under the FNHRA. It appears that plaintiffs have plead a viable § 1983 claim

However, Ms. Moyer is deceased and cannot bring a § 1983 claim in her own right. "It has of course been well established for many years that a cause of action arising under a federal civil rights statute does not die with the victim of the alleged constitutional wrong." Baffa v. Black, 481 F. Supp. 1083, 1085-86 (E.D. Pa. 1979); see also Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir. 1961), cert. denied, 368 U.S. 921 (1961) (". . . [I]t defies history to conclude that Congress meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant towithdraw the protection of civil rights statutes against the peril of death."). Since the Civil Rights Act is silent on the issue, district courts must look to state law to determine if the civil rights claim survives the decedent's death. 42 U.S.C. § 1988;⁴ Robertson v. Wegmann, 436 U.S. 584, 593 - 594 (1978); Giles v. Campbell, 698 F.3d 153, 156 (3d. Cir. 2012). Plaintiffs seek to vindicate the decedent's § 1983 claims by way of Pennsylvania's wrongful death and survival statutes. I will address the wrongful death claim first.

Defendants object to plaintiffs' assertion of a wrongful death claim based on the alleged violations of the decedents FNHRA rights. A wrongful death action compensates the spouse, children and parents of the decedent for the damages they sustain by reason of the decedent's death. 42 Pa.C.S. § 8301;⁵ Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994) "[T]he cause of action contemplated by the statute is the tort which produces death, and not the death caused by the tort." Centofanti v. Pennsylvania R. Co., 90 A. 558, 561 (Pa.1914).⁶ As Ms. Moyer's children, plaintiffs are the beneficiaries of any wrongful death recovery; however, they bring this action in their capacity as the administrators of Ms. Moyer's estate pursuant to Pa. R. Civ. P. 2202.⁷ See Miller v. Philadelphia Geriatric Ctr., 463 F.3d 266, 277 (3d Cir. 2006) (dismissing § 1983 action filed by daughter of decedent because estate had already filed claim on her behalf); See also Baffa, 481 F. Supp. at 1086 (plaintiff may not bring a § 1983 wrongful death action in his individual capacity, but he may do so in his capacity as executor).

Defendants argue that Pennsylvania's wrongful death statute does not apply to §1983 actions because the "remedies for a wrongful death do not afford redress for deprivations of the decedent's federal rights." Br. 8. Usually, a plaintiff does not have standing to litigate the violations of a third party's civil rights. O'Malley v. Brierley, 477 F.2d 785, 789 (3d Cir. 1973). Insofar as the underlying tort in a wrongful death action is the tort causing death, a § 1983 wrongful death claim would appear to conflict with O'Malley because plaintiffs would be allowed to recover damages based on the violation of their mother's civil rights. On the other hand, some courts have reasoned that the decedent's survivors are also victims of the civil rights infringement; therefore, a wrongful death action must be allowed to give the civil rights statute full effect. Brazier, 293 F.2d at 409.

The Supreme Court has not decided "whether § 1983, independently or in conjunction with state law, may be used by survivors when the decedent's death resulted from a constitutional violation." Berry v. City of Muskogee, Okl., 900 F.2d 1489, 1502 (10th Cir. 1990) (citing Jones v. Hildebrant, 432 U.S. 183 (1977)).⁸ Consequently, the courts of appeals have struggled with this question and have reached differing results. Finding that estates lack standing, several circuits prohibit § 1983 wrongful death claims preferring instead a federal common law remedy.⁹ See Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001); Berry, 900 F.2d at 1506-7; Jaco v. Bloechle, 739 F.2d 239, 243 (6th Cir. 1984)). Other courts allow § 1983 wrongful death claims to go forward. See Carringer v. Rodgers, 331 F.3d 844, 850 (11th Cir. 2003); Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974); Brazier, 293 F.2d at 409. The Third Circuit has not addressed the issue¹⁰ and there is disagreement among the judges of this district. Compare Massey v. Fair Acres Geriatric Center, 881 F.Supp.2d 663 (E.D. Pa. 2012), with Baffa, 481 F. Supp. at 1086.

At this early stage of the litigation, I will not dismiss the § 1983 wrongful death claim. As plaintiffs point out, the only damages which may be recoverable under their wrongful death claims are funeral expenses. Resp. 6. Such expenses are recoverable even under the rule adopted by the Sixth, Eighth and Tenth Circuits.¹¹ Berry, 900 F.2d at 1506-07 (...