Price v. Price

• Decision Date: 26 September 2018
• Docket Number: Civil Action No. 18-cv-00029-CMA-SKC
• Citation: Price v. Price, Civil Action No. 18-cv-00029-CMA-SKC (D. Colo. Sep 26, 2018)
• Parties: LARRY J. PRICE, individually and as son and beneficiary of Tiena A. Price, deceased, Plaintiff, v. STEPHEN P. PRICE, individually and in his official capacity as Guardian, Conservator, and Trustee, ALLAN S. PRICE, COLUMBINE COMMONS HEALTH & REHAB CENTER, a Colorado corporation and skilled nursing facility, and STATE OF COLORADO DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT, Defendants.
• Court: U.S. District Court — District of Colorado

LARRY J. PRICE, individually and as son and beneficiary of Tiena A. Price, deceased, Plaintiff, v. STEPHEN P. PRICE, individually and in his official capacity as Guardian, Conservator,and Trustee, ALLAN S. PRICE, COLUMBINE COMMONS HEALTH & REHAB CENTER,a Colorado corporation and skilled nursing facility, andSTATE OF COLORADO DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT, Defendants.

Civil Action No. 18-cv-00029-CMA-SKC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

September 26, 2018

Judge Christine M. Arguello

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

This matter comes before the Court on Defendants' several Motions to Dismiss:

1. Defendant Stephen Price's pro se Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim, filed February 13, 2018 (Doc. # 10), to which Plaintiff Larry Price untimely responded on March 8, 2018¹ (Doc. # 17);

2. Defendant Columbine Commons Health & Rehab Center's ("Defendant Columbine") Motion to Dismiss Pursuant to Federal Rules of Civil Procedures 12(b)(1) and 12(b)(6), filed March 6, 2018 (Doc. # 12), to which Plaintiff untimelyresponded on March 30, 2018 (Doc. # 23). Defendant Columbine replied in support of its Rule 12(b) Motion to Dismiss on April 13, 2018 (Doc. # 28);

3. Defendant Colorado Department of Public Health and Environment's ("Defendant CDPHE") Motion to Dismiss, filed March 6, 2018 (Doc. # 13), to which Plaintiff untimely responded on March 30, 2018 (Doc. # 24). Defendant CDPHE replied in support of its Motion to Dismiss on April 10, 2018 (Doc. # 27);

4. Defendant Allan Price's pro se Motion to Dismiss for Improper Service Pursuant to Federal Rule of Civil Procedure 4, filed March 23, 2018 (Doc. # 22), to which Plaintiff responded on April 13, 2018 (Doc. # 29). Defendant Allan Price replied in support of his Motion to Dismiss on April 24, 2018 (Doc. # 35);

5. Defendant Allan Price's pro se Motion to Dismiss for Untimely Alleged Service of Summons (Doc. # 36); and

6. Defendant Columbine's third Motion to Dismiss for Failure to File a Certificate of Review, filed August 15, 2018 (Doc. # 48).

For the reasons discussed below, the Court concludes that it lacks jurisdiction over Plaintiff's claims and therefore dismisses the entire matter, as Defendant Columbine urges (Doc. # 12). The Court grants Defendant Columbine's Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) (id.) and denies as moot the remaining Defendants' various Motions to Dismiss in light of the Court's conclusion.

I. BACKGROUND AND PROCEDURAL HISTORY

As the Court explained in its previous Order (Doc. # 25), Plaintiff Larry Price is the son of Tiena Price, now deceased, and has four brothers and sisters: Stephen, Allan, Linda, and Diana (now deceased). (Doc. # 1 at 5.) Plaintiff's Complaint arises out of the appointment of his mother's guardian, the placement of his mother in a nursing home facility, and his mother's death. See generally (id.) Plaintiff, acting pro se, asserts claims against his brother, Defendant Stephen Price; his other brother,Defendant Allan Price; the nursing home at which his mother was admitted, Columbine Commons in Windsor, Colorado; and the Colorado Department of Public Health and Environment. (Id. at 5-7.) Plaintiff's Complaint, filed January 4, 2018, alleges:

1) General negligence - wrongful death, against Defendants Stephen Price and Columbine;

2) Gross negligence - intentional misconduct, against Defendants Stephen Price and Columbine;

3) Denial of due process under 42 U.S.C. § 1983, against all Defendants;

4) Violation of the Nursing Home Reform Act Amendments, 42 U.S.C. § 1396r, against Defendant Columbine;

5) Wrongful death - felonious killing, against Defendants Stephen Price, Allan Price, and Columbine; and

6) Wrongful death, against all Defendants.

(Id. at 21-39.)

Plaintiff asserts that this Court has jurisdiction over "all causes of action and parties in this case" pursuant to 28 U.S.C. §§ 1331, 1332, and 1367. (Id. at 4.) As to Section 1331, regarding federal question jurisdiction, Plaintiff asserts that "there are federal questions to be answered." (Id.) As to Section 1332, regarding diversity jurisdiction, Plaintiff states that his case concerns "damages in excess of $75,000" and involves "parties from both Colorado and Texas." (Id.) Finally, Plaintiff invokes supplemental jurisdiction under Section 1367 as to "the claims against all parties [that] are so intertwined they cannot be separated." (Id.)

II. APPLICABLE LEGAL STANDARDS

A. PRO SE STATUS

Plaintiff is a pro se litigant. The Court, therefore, reviews his pleading "liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). Nor does pro se status entitle a litigant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

B. SUBJECT MATTER JURISDUCTION

The objection that a federal court lacks subject matter jurisdiction may be raised by a party or by the Court sua sponte at any stage in the litigation. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). It is the plaintiff's burden to allege facts in his complaint sufficient to show that the Court has subject matter jurisdiction, which can arise from either federal question jurisdiction, 28 U.S.C. § 1331, or diversity jurisdiction,28 U.S.C. § 1332. Reedom v. Crappell, 591 F. App'x 691, 692 (10th Cir. 2015). Though the Court construes pro se pleadings liberally, a pro se litigant, like Plaintiff in this matter, must follow the same rules of procedure that govern other litigants. Id.

Should the Court determine that it does not have subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3); Harris v. Ill.-Cal. Exp., Inc., 687 F.2d 1361, 1366 (10th Cir. 1982).

III. DISCUSSION

A. THE COURT LACKS FEDERAL QUESTION JURISDICTION, AS CLAIMS 3 AND 4 FAIL TO STATE CLAIMS FOR RELIEF AND MUST BE DISMISSED

The Constitution provides that federal courts may be given jurisdiction over "Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority." U.S. Const., Art. III., § 2. Congress gave federal courts general original jurisdiction over such cases in the Judiciary Act of 1875. Schweiker v. Chilicky, 487 U.S. 412, 420 (1988). The statute currently provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C § 1331. Cases falling within this category are usually said to invoke federal question jurisdiction or, occasionally, arising under jurisdiction. 13D Charles Alan Wright, et al., Federal Practice & Procedure § 3561 (3d ed. 2018).

In this matter, Plaintiff asserts that the Court has jurisdiction pursuant to Section 1331 "because rights were deprived and there are federal questions to be answered." (Doc. # 1 at 4.) The only claims that can be said arise under the Constitution or laws of the United States are Claims 3 and 4. The Court first examines whether Plaintiff's thirdand fourth causes of action establish that this Court has federal question jurisdiction. It concludes that it does not have federal question jurisdiction over these claims for the reasons discussed below.

1. Claim 3 fails to state a claim for relief and must be dismissed pursuant to Rule 12(b)(6)

Plaintiff's third cause of action, asserted under 42 U.S.C. § 1983, alleges that all Defendants denied Tiena Price of her procedural due process rights. (Doc. # 1 at 29-32.) Plaintiff alleges that all Defendants did so "in the Probate Court, in Columbine Commons, and in the guardianship." (Id. at 30.) Tiena Price was "not allowed to attend hearings that addressed her deprivation . . . of life, liberty, and property," Plaintiff continues, and "[p]rocedures . . . were not adhered to." (Id. at 31.)

The Court presumes Plaintiff is referring to the hearings before and the procedures of the state probate court concerning Tiena Price's guardianship.² In the factual allegations of his Complaint, Plaintiff describes multiple proceedings before the state probate court. He alleges that early in 2013, a "secret hearing" was held at the Logan County District Court, in which the probate court appointed Defendant Allan Price the emergency guardian and special conservator of Tiena Price and as the temporary trustee of her trust. (Id. at 10.) Plaintiff states that in March 2013, the probate court held a permanent incapacity hearing that lasted fifteen hours, only three hours of which Tiena Price attended. (Id. at 11-12.) He contends that the probate court did not ask for"proof of the significant monies gifted to other family members by Tiena," which Plaintiff believes would have refuted his siblings' argument that he financially exploited Tiena Price. (Id. at 12.) Plaintiff reports that at the end of the hearing, Defendant Stephen Price was named Tiena Price's permanent guardian, co-guardian, and as a trustee of her trust. (Id.) Plaintiff alleges that he applied to the probate court to become Tiena Price's...