Bach v. Idaho State Board of Medicine et al

Filing 120

MEMORANDUM DECISION AND ORDER denying 25 Motion to Strike ; denying 29 Motion to Dismiss for Lack of Jurisdiction; denying 40 Motion to Dismiss; denying 43 Motion to Dismiss; denying 55 Motion to Strike ; denying 73 Motion to Dismiss; den ying 81 Motion to Dismiss; denying 82 Motion to Dismiss; denying 83 Motion to Dismiss; denying 84 Motion to Dismiss; denying 86 Motion to Strike ; denying 89 Motion to Dismiss; denying 90 Motion to Dismiss; denying 94 Motion to Dismis s; denying 95 Motion to Dismiss; denying 96 Motion to Dismiss; denying 97 Motion to Dismiss; denying 99 Motion to Dismiss; denying 100 Motion to Dismiss; denying 101 Motion to Dismiss; denying 103 Motion to Dismiss; denying 9 Motion t o Dismiss for Lack of Jurisdiction. Plaintiff shall file an amended complaint within 20 days from the date of this decision. If no amended complaint is filed by the deadline, the court will dismiss this matter without further notice Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CINDY LEE BACH, deceased, and JOHN N.
BACH, widower,
Case No. 4: 10-CV-548-BLW
Plaintiff,
v.
IDAHO STATE BOARD OF MEDICINE,
STEVE J. WRIGHT, Individually and d/b/a
WRIGHT, JOHNSON , TOLSON, AND
WAYNE, agents/representative of Idaho State
Board of Medicine and Teton Valley Health
Care; TETON VALLEY HEALTH CARE;
TETON COUNTY IDAHO; TETON
COUNTY BOARD OF COMMISSIONERS:
LARRY YOUNG, MARK TRUPP, & ALICE
STEVENSON, and LARRY T. CURTIS, M.D.;
CHAD ROGER HORROCKS, M.D. &
ROBERT ANTHONY WOLFE, M.D.; TETON
VALLEY HEALTH CARE BOARD OF
TRUSTEES AND Chairpersons, C.E.O.’s
C.F.O.’s, Managers and Agents: SUSAN
KUNTZ, RACHAEL GONZALES, MICHAEL
WHITFIELD, MITCH FELCHLE, DAWN
FELCHLE, NANCY McCULLOUGHMcCOY, ROBERT EMERSON, LaNICE
MURPHY, GORDIE GILLETTE, CALVIN
CAREY, FLOYD BOUNDS, LAURA PIQET,
and ANN LOYOLA; TETON COUNTY
IDAHO CORONERS OFFICE, TIMOTHY
MELCHER, NATALIE KAUFMAN, and
agents A. FRANCI TRYKA, M.D., and ALICE
NEUMANN, M.D., individually and d/b/a
WESTERN WYOMING PATHOLOGY and
ST. JOHNS’ MEDICAL CENTER; TETON
VALLY HOSPITAL DIRECTOR OF NURSES
DEBRA TAYLOR, AND Nurses/Agents:
Memorandum Decision and Order - 1

MEMORANDUM DECISION
AND ORDER

MEMORY ALLEN, RENEE COVERT,
KRISTEN IRVINE, N. aka NIKKI
RIPPLINGER, KATRINE ST. JEON, AND K.
SORENSEN; TETON VALLEY NEWS,
PIONEER NEWSPAPERS, LLC, STACY
SIMONET, and MICHAEL POLHAMUS
Defendants.

INTRODUCTION
The Court has before it the following Defendants’ motions to dismiss: (1) Larry T.
Curtis, M.D. (Dkt. 9); (2) Stacy Simonet (Dkt. 29); (3) Virgil Boss (Dkt. 40); (4) Pioneer
Newspapers, LLC (Dkt. 73); (5) Chad Roger Horrocks, M.D. (Dkt. 81); (6) Renee Covert
(Dkt. 82); (7) Kristen Irvine (Dkt. 83); (8) Nikki Ripplinger (Dkt.84); (9) Rachel
Gonzales (Dkt. 89); (10) Susan Kuntz (Dkt. 90); (11) Teton Valley Health Care Board of
Trustees (Dkt. 94); (12) Steven Dietrich (Dkt. 95); (13) Nancy McCullough-McCoy (Dkt.
96); (14) Gordie Gillette (Dkt. 97); (15) Mitch Felchle (Dkt. 99); (16) Floyd Bounds
(Dkt. 100); (17) Laura Piquet (Dkt. 101) and (18) Ann Loyola (Dkt. 103). For the reasons
explained below, the Court will deny the motions without prejudice and direct Plaintiff
Bach to amend the Complaint. Bach’s motions to strike (Dkt. 55 and 86) the motions to
dismiss filed by Stacy Simonet and Pioneer Newspapers, LLC are also denied without
prejudice.
FACTUAL BACKGROUND
Plaintiff, John Bach, has alleged a conspiracy between all of the named defendants
which “created a corrupt hospital [and] resulted in the abandonment, wrongful death, and
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homicide of” his wife, Cindy Lee Bach. Compl. ¶ 66, Dkt. 1. The conspiracy allegedly
extends to the Idaho State Board of Medicine’s prelitigation screening for medical
malpractice claims and includes local media representatives. Id. at ¶ 45-46.
Prior to his wife’s passing, Bach alleges that Teton Valley Health Care (“TVHC”)
“was in dire financial straits.” Id. at ¶ 8. Many of the Defendants were allegedly aware of
this situation. Id. at ¶ 8-10. Bach also asserts that many of the Defendants associated
with TVHC were engaged in “money dissipations, laundering, and siphoning to past and
present board of trustee members, agents, C.E.O, and C.F.O.’s, and members of
defendant doctors and family cohorts.” Id. at ¶ 9, 11. This allegedly created the “corrupt”
state of TVHC when his wife was receiving medical care and died there. Id. at ¶ 66.
Bach’s wife checked into the hospital on November 5, 2008. Id. at ¶ 12. Defendant
Horrocks “diagnosed [her] with community acquired pneumonia.” Id. at ¶ 17. Because
Ms. Bach’s condition appeared to be improving on November 6, Defendant Horrocks
planned to release her on November 8. However, at 5 a.m. on November 8, Ms. Bach
“was found unresponsive in her bed.” Id. at 27. Defendant Wolfe’s efforts to resuscitate
her failed. Id. at ¶ 28-29. Thereafter, TVHC sent Ms. Bach’s remains to the neighboring
town of Jackson, Wyoming for autopsy. Id. at ¶ 31. Plaintiff alleges that this autopsy was
performed incorrectly and that Teton County Deputy Coroner, Defendant Kaufman,
“issued a misleading Certificate of Death.” Id. at ¶ 36-37.
Bach filed an Application for Prelitigation with the Idaho State Board of Medicine
on May 16, 2009. Id. at ¶ 39-40. His hearing was held on November 6, 2009. Id. Bach
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alleges that a conflict of interest existed among board members and that his hearing was
terminated prematurely when he responded to the panel saying, “What part of ‘no’ don’t
you understand.” [sic] Id. at ¶ 44.
Finally, Bach’s conspiracy theory extends to Defendant TVN and those
Defendants associated with it. TVN published an article titled “Bach controversy not yet
settled,” which reported the status of several cases Bach was involved in and noted both
that he was a disbarred attorney and that he had a criminal history. Def.’s Br. Exhibit A,
Dkt. 29-1.1
On November 8, 2010, Bach filed his claim with this Court, alleging violations of
the following federal laws: U.S. Constitution; Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961-1968 (2006) (“RICO”); and Civil Rights Act of
1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2
U.S.C., 28 U.S.C. and 42 U.S.C.). Bach has also alleged a state law medical malpractice
claim.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief,” in order to “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
1

“[E]ven if a document is not attached to a complaint, a defendant may offer it and the court may
incorporate it by reference into a complaint if the plaintiff refers extensively to the document or the
document forms the basis of the plaintiff’s claim.” Gibson v. Credit Suisse AG, No. CV 10-1-EJL-REB,
2010 WL 1904773, at *2 (D. Idaho May 11, 2010) (internal quotations omitted). See also Knievel v.
ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual
allegations,” it must set forth “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. at 555. To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Id. at 570. 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. at 556.
The plausibility standard is not akin to a “probability requirement,” but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint
pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557.
Two years after Twombly was decided, the Supreme Court identified two
“working principles” that underlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009). First, the tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Id. “Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior era, but it
does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Id. at 1950. Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss. Id. “Determining whether a complaint states a

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plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id.
A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728,
737 (9th Cir. 2009) (issued two months after Iqbal).2 The Ninth Circuit has held that “in
dismissals for failure to state a claim, a district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v.
Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The
issue is not whether plaintiff will prevail but whether he “is entitled to offer evidence to
support the claims.” Diaz v. Int’l Longshore and Warehouse Union, Local 13, 474 F.3d
1202, 1205 (9th Cir. 2007)(citations omitted).
ANALYSIS
The Iqbal-Twombly standard is settled law: “Our decision in Twombly expounded
the pleading standard for all civil actions.” Iqbal, 129 S. Ct. at 1953 (internal quotations
omitted). It is clear Bach’s counsel was unaware of the elevated pleading requirement

2

The Court has some concern about the continued vitality of the liberal amendment policy adopted in
Harris v. Amgen, based as it is on language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), suggesting
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim. . ..” Given Twombly and Iqbal’s rejection
of the liberal pleading standards adopted by Conley, a question arises whether the liberal amendment
policy of Harris v Amgen still exists. Nevertheless, the Circuit has continued to apply the liberal
amendment policy even after dismissing claims for violating Iqbal and Twombly. See Market Trading,
Inc. v. AT&T Mobility, LLC, 2010 WL 2836092 (9th Cir. July 20, 2010) (not for publication).
Accordingly, the Court will continue to employ the liberal amendment policy.

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when crafting the Complaint and defending it against these motions to dismiss. For
example, Bach stated that “Igbal [sic] is absolutely not an applicable, relevant authority
regarding the R.I.C.O. pleading violations.” Pl.’s Resp. at 5, Dkt. 23. This position is
incorrect. Further, the Complaint is replete with “labels[,] conclusions, and . . . formulaic
recitation[s] of the elements of a cause of action,” and that “will not do.” Twombly, 550
U.S. at 555.
The present complaint is therefore deficient under Iqbal/Twombly. But the
authority quoted above shows that Bach is entitled to an attempt to cure the deficiencies
through an amended complaint. Accordingly, the Court will deny the motions to dismiss
without prejudice, and direct Bach to file an amended complaint. The Court will deny
the motions without prejudice because the Court anticipates that another round of those
motions may be filed following the filing of an amended complaint.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that Defendants’ motions to
dismiss (Dkt. 9, 29, 40, 43, 73, 81-84, 89, 90, 94-97, 99-101 and 103) are DENIED
without prejudice.
IT IS FURTHER ORDERED, that Plaintiff’s motions to strike (Dkt. 25, 55 and
86) are DENIED without prejudice.

Memorandum Decision and Order - 7

IT IS FURTHER ORDERED, that Plaintiff shall file an amended complaint within
20 days from the date of this decision. If no amended complaint is filed by the deadline,
the court will dismiss this matter without further notice.

DATED: July 22, 2011

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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