Peters v. Applewood Care and Rehabilitation Center et al

Filing 20

///ORDER granting 3 Motion to Dismiss for Failure to State a Claim; denying as moot 15 Motion for Hearing. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Beatrice M. Peters, Administatrix of
the Estate of Sylvia Robinson
v.

Case No. 12-cv-233-PB
Opinion No. 2012 DNH 150

Applewood Care and
Rehabilitation Center et al.
MEMORANDUM AND ORDER
The estate of Sylvia Robinson (the “Estate”) filed suit in
New Hampshire Superior Court against Applewood Care and
Rehabilitation Center (“Applewood”), a privately owned and
operated nursing home, Gail Cushing, the administrator of the
facility, as well as unknown physicians and nurses working for
Applewood.

The Estate seeks to hold defendants liable for

Robinson’s death and other injuries she sustained during her
residency at Applewood.

The complaint asserts four state law

claims that sound in tort and a section 1983 claim for
violations of the Federal Nursing Home Reform Amendments
(“FNHRA”) to the Medicaid law, 42 U.S.C. § 1396r.

Based on

federal question jurisdiction over the section 1983 claim,
defendants removed the action to this court.
a motion to dismiss.

Cushing has filed

For the reasons provided below, I dismiss

the section 1983 claim against all defendants and decline to
exercise supplemental jurisdiction over the remaining state law
claims.

I.

BACKGROUND

In 2004, Robinson became a resident of Applewood, a longterm healthcare facility located in Winchester, New Hampshire.
As Applewood’s administrator at all relevant times, Cushing was
responsible for managing and operating the facility.
On April 6, 2010, at approximately 1:15 AM, Robinson fell
out of her bed after the nursing staff failed to engage the bed
rails.

There was nothing on the floor to cushion her fall.

Concerned about her injuries, Applewood’s staff brought Robinson
to Cheshire Medical Center (“Cheshire”) for emergency evaluation
at approximately 2:00 AM.

After an assessment, Robinson was

sent back to Applewood.
Robinson complained about severe pain and discomfort later
that morning.

At 12:15 PM, Applewood’s staff brought Robinson

back to Cheshire, where she was diagnosed with a left distal
femur fracture as well as contusions on her left leg and foot,
and both of her thighs.
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Robinson subsequently suffered sepsis from a suspected
urinary tract infection, renal insufficiency, and hypotension.
She died on April 13, 2010, seven days after her fall.

During

her time at the facility, Robinson also suffered from pressure
ulcers, malnourishment, and dehydration.

II.

STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6),
plaintiff must make factual allegations sufficient to state a
claim to relief that is plausible on its face.
Iqbal, 556 U.S. 662, 678 (2009).

See Ashcroft v.

A claim is facially plausible

when it pleads “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.

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.

(citations omitted).
In deciding a motion to dismiss, I employ a two-pronged
approach.

See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1,

12 (1st Cir. 2011).

First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact
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or threadbare recitals of the elements of a cause of action.”
Id. (citations, internal quotation marks, and alterations
omitted).

A claim consisting of little more than “allegations

that merely parrot the elements of the cause of action” may be
dismissed.

Id.

Second, I credit as true all non-conclusory

factual allegations and the reasonable inferences drawn from
those allegations, and then determine if the claim is plausible.
Id.

The plausibility requirement “simply calls for enough fact

to raise a reasonable expectation that discovery will reveal
evidence” of illegal conduct.
U.S. 544, 556 (2007).

Bell Atl. Corp. v. Twombly, 550

The “make-or-break standard” is that

those allegations and inferences, taken as true, “must state a
plausible, not a merely conceivable, case for relief.”
Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29
(1st Cir. 2010); see Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the
speculative level . . . .” (citation omitted)).

III.

ANALYSIS

Cushing moves to dismiss all the claims to the extent they
seek to hold her personally liable for Robinson’s injuries.
4

In

her initial brief, Cushing argued that I should dismiss the
section 1983 claim because the FNHRA does not provide for a
private right of action, devoting a meager three sentences to
her argument.

In her reply brief to the Estate’s objection to

the motion, Cushing argues for the first time that she cannot be
held liable under section 1983 because she is not a state actor.
The Estate has responded to the argument in its surreply brief.
Because it is clear that the Estate has failed to allege
sufficient facts to show that either Applewood or its agents
acted under color of state law, I dismiss the section 1983 claim
against all defendants.
To state a viable section 1983 claim, “a plaintiff must
show both that the conduct complained of transpired under color
of state law and that a deprivation of federally secured rights
ensued.”
2011).

Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir.
Where a plaintiff asserts a section 1983 claim against a

private party, the plaintiff must establish that “the alleged
infringement of federal rights [was] fairly attributable to the
State[.]”

Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)

(internal quotation marks omitted).

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In the present case, the Estate alleges that a privately
owned and operated nursing home and its agents acted under color
of state law because the nursing home is “heavily funded by, and
relies on, Medicaid and Medicare funds . . . [and] is
necessarily and mandatorily regulated by the federal government
under 42 U.S.C. § 1396r[.]”

Compl. ¶ 32, Doc. No. 1-1.

It is

abundantly clear, however, that “government regulation, even
extensive regulation, and the receipt of [government] funds,
such as Medicare, Medicaid and Hill–Burton funds, are
insufficient to establish that a hospital or other entity acted
under color of state law.”

Rockwell v. Cape Cod Hosp., 26 F.3d

254, 258 (1st Cir. 1994).
In fact, no lesser authority than the Supreme Court has
rejected the argument that a privately owned and operated
nursing home could be treated as a state actor solely because it
is extensively regulated and substantially subsidized by the
government.1

1

Blum v. Yaretsky, 457 U.S. 991, 1004, 1011 (1982).

Although the specific issue in Blum was whether private nursing
homes could be held liable under the due process clause of the
Fourteenth Amendment, the Supreme Court has held that “[i]n a §
1983 action . . . the statutory requirement of action ‘under
color of state law’ and the ‘state action’ requirement of the
Fourteenth Amendment are identical.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 929 (1982).
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In Blum, the Court held that “although it is apparent that
nursing homes in [the state] are extensively regulated, the mere
fact that a business is subject to state regulation does not by
itself convert its action into that of the State[.]”

Id. at

1004 (internal quotation marks and alterations omitted).

And

although the state in that case subsidized the operating costs
of the nursing homes and paid the medical expenses of more than
90% of the patients, the Court, in no uncertain terms, also
rejected the argument that extensive state funding converted a
private nursing home into a state actor:
That programs undertaken by the State result in
substantial funding of the activities of a private
entity is no more persuasive than the fact of
regulation of such an entity in demonstrating that the
State is responsible for decisions made by the entity
in the course of its business.
Id. at 1011.
Despite the fact that Cushing cited to Blum in her reply
brief, the Estate’s surreply brief does not address the case.
Instead, the Estate cites to inapposite circuit court cases for
the proposition that state funding and pervasive regulation are
sufficient to convert private action into state action.

See

Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th
Cir. 2003) (holding that a privately operated prison is a state
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actor because it performs a public function traditionally
reserved for the state); Horvath v. Westport Library Ass’n., 362
F.3d 147, 152-53 (2nd Cir. 2004) (concluding that a library is
not a state actor by virtue of public funding alone, but rather
because it was created by a legislative act to further
governmental objectives, and because the state retained
permanent authority to appoint half of the library’s governing
board).
The alleged grounds of state action in the instant case are
indistinguishable from the grounds the Supreme Court rejected in
Blum.

Accordingly, I dismiss the Estate’s section 1983 claim

against all defendants.2

Having disposed of the only federal

claim at this early stage of the case, I decline to exercise
supplemental jurisdiction over the Estate’s state law claims.
See 28 U.S.C. § 1367(c)(3); Camelio v. Am. Fed’n, 137 F.3d 666,
672 (1st Cir. 1998).

2

In light of my disposition of the case, I deny as moot
defendants’ motion for a hearing (Doc. No. 15) on the motion to
dismiss.
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IV.

CONCLUSION

For the aforementioned reasons, I grant the motion to
dismiss the section 1983 claim against all defendants (Doc. No.
3). Pursuant to 28 U.S.C. § 1367(c), I remand the Estate’s
supplemental state law claims to Cheshire County Superior Court.
The clerk shall enter judgment dismissing the federal claim and
remand the remaining claims to state court.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
August 30, 2012
cc:

Robert A. Skaines, Esq.
Daniel C. Federico, Esq.
Jacob John Brian Mavelley, Esq.
Edwinna C. Vanderzanden, Esq.

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