HOPE v. FAIR ACRES GERIATRIC CENTER

Filing 22

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/25/2016. 7/25/2016 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GEORGIA A. HOPE,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
FAIR ACRES GERIATRIC CENTER,
Defendant.

CIVIL ACTION
No. 15-06749

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

July 25, 2016

This is the Court’s second time addressing the
adequacy of Plaintiff Georgia A. Hope’s claims against Defendant
Fair Acres Geriatric Center (“Fair Acres”), a nursing home that
provided care to Plaintiff from January to November 2014. The
Court previously dismissed Plaintiff’s Complaint for failure to
state a claim and granted her leave to amend certain aspects of
the complaint.
Plaintiff filed her Amended Complaint, again alleging
that Fair Acres violated her federal statutory rights by
providing deficient care during her stay. One month after filing
the Amended Complaint, Plaintiff filed a motion1 for leave to

1

Plaintiff styles her motion as a “Petition to Amend
Complaint and Caption.” ECF No. 16.
1

join additional defendants. Defendant has moved to dismiss
Plaintiff’s Amended Complaint and opposes Plaintiff’s motion.
For the reasons that follow, the Court will grant
Defendant’s motion to dismiss as to Plaintiff’s claims against
Fair Acres, and Plaintiff’s claims against Fair Acres will be
dismissed with prejudice. Given that the Court is dismissing all
claims against Fair Acres with prejudice, the motion to join
additional defendants will be denied as moot.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In January 2014, Plaintiff Georgia A. Hope was

admitted to Fair Acres Geriatric Center (“Fair Acres”), a
county-owned nursing home located in Lima, Pennsylvania. Am.
Compl. ¶ 14, ECF No. 13. During Plaintiff’s stay at the nursing
home, at which time she was 90 years old, she experienced
infection, gangrene, dehydration, and a lower extremity sacral
wound that resulted in a partial leg amputation. Id. ¶¶ 15, 24.
On December 22, 2015, Plaintiff filed her original
Complaint against Fair Acres, alleging negligence per se;
negligence; corporate negligence; violation of her civil rights
under 42 U.S.C. § 1983 for Fair Acres’s failure to provide the
care required by the Federal Nursing Home Reform Amendments
(“FNHRA”), 42 U.S.C. § 1396 et seq., and Omnibus Budget
Reconciliation Act of 1987 (“OBRA”) regulations, 42 C.F.R.

2

§ 483.1 et seq.; violation of the Medicare Secondary Payer Act
(“MSPA”), 42 U.S.C. § 1395y(b), for Medicare-paid expenses; and
violation of Pennsylvania’s Unfair Trade Practices and Consumer
Protection Law (“UTPCPL”), 73 Pa. Cons. Stat. §§ 201-1 to 2019. ECF No. 1.
On January 20, 2016, Fair Acres moved to dismiss
Plaintiff’s original Complaint, ECF No. 4, which the Court
granted after a hearing. ECF No. 10. The Court dismissed with
prejudice Plaintiff’s negligence claims against Fair Acres
because the Pennsylvania Political Subdivision Tort Claims Act
(“PSTCA”) provides Fair Acres, as an entity owned and operated
by Delaware County, with general immunity from tort liability.
Hope v. Fair Acres Geriatric Ctr., No. 15-6749, 2016 WL 1223063,
at *2-4 (E.D. Pa. Mar. 29, 2016). The Court also dismissed
Plaintiff’s § 1983, MSPA, and UTPCPL claims for failure to
adequately state a claim for relief, but granted Plaintiff leave
to amend these claims. Id. at *7-10.
Now, in her Amended Complaint, Plaintiff reasserts her
§ 1983 claim against Fair Acres.2 ECF No. 13. She also seeks
leave to join additional defendants, including the Delaware
County Council; William D’Amico, Administrator for Fair Acres;
Dr. James Bonner, Medical Director for Fair Acres; Dr. Franklin
2

Plaintiff has dropped her MSPA and UTPCPL claims
against Fair Acres.
3

Vogel, Jr., DPM, Treating Physician at Fair Acres; Tracy
Williams, Head Nurse at Fair Acres; Walter Lewis, MD, of Fair
Acres; the Director of Nursing at Fair Acres; and an unspecified
number of John and Jane Does, employees at Fair Acres.
According to Plaintiff, all Defendants failed to
update her plan of care when her condition declined; recognize
the decline in her functional abilities and the onset of her
injuries; and assist her when she began experiencing pain,
swelling, redness, and infection. Am. Compl. ¶ 23, ECF No. 13.
Plaintiff also alleges that Defendants failed to hire and train
a sufficient number of competent employees to address her
medical needs. Id. ¶ 35. Plaintiff alleges that Defendants acted
with “deliberate indifference” to her protected rights and
engaged in a “pattern and practice of ongoing neglect.” Id.
¶¶ 35, 41.
On May 9, 2016, Fair Acres filed a motion to dismiss
Plaintiff’s Amended Complaint. ECF No. 14. In addition to
various substantive challenges, Defendants noted that Plaintiff
did not seek leave to join additional parties. Id. ¶ 6 n.1.
In response to Defendant’s motion, Plaintiff filed a
motion to join additional defendants--over one month after
filing her Amended Complaint. ECF No. 16. Plaintiff attached the
Amended Complaint to the petition, despite its earlier filing.
Pet. Am. Compl. & Caption, Ex. A, ECF No. 16-1.
4

After a hearing on July 11, 2016, Fair Acres’s motion
to dismiss and Plaintiff’s motion to join additional parties are
ripe for disposition.
II.

MOTION TO DISMISS
The Court first considers Defendant Fair Acres’s

Motion to Dismiss the Amended Complaint.
A.

Legal Standard
A party may move to dismiss a complaint for failure to

state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). When considering such a motion, the Court must “accept
as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the
light most favorable to the non-moving party.” DeBenedictis v.
Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007) (internal
quotation marks omitted). To withstand a motion to dismiss, the
complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). This “requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. Although a
plaintiff is entitled to all reasonable inferences from the facts
alleged, a plaintiff’s legal conclusions are not entitled to
deference and the Court is “not bound to accept as true a legal
5

conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986).
The pleadings must contain sufficient factual
allegations so as to state a facially plausible claim for relief.
See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d
187, 190 (3d Cir. 2009). “‘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. (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). In deciding a Rule 12(b)(6) motion, the
Court limits its inquiry to the facts alleged in the complaint
and its attachments, matters of public record, and matters of
which the Court may take judicial notice. Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993). The Court may also consider undisputedly
authentic documents if the complainant’s claims are based upon
those documents. Pension Benefit Guar. Corp., 998 F.2d at 1196.
B.

Discussion
Plaintiff asserts only one claim against Defendant

Fair Acres in her Amended Complaint: a claim pursuant to § 1983.
“Section 1983 is ‘a vehicle for imposing liability against
anyone who, under color of state law, deprives a person of

6

rights, privileges, or immunities secured by the Constitution
and laws.’” Massey v. Fair Acres Geriatric Ctr., 881 F. Supp. 2d
663, 666 (E.D. Pa. 2012) (quoting Grammer v. John J. Kane Reg’l
Ctrs.-Glen Hazel, 570 F.3d 520, 525 (3d Cir. 2009)). Here, Fair
Acres acted under color of state law as an entity owned and
operated by Delaware County. See Am. Compl. ¶ 3. In addition,
Plaintiff alleges that Fair Acres and its employees violated the
FNHRA, id. ¶¶ 21, 34, 49-50, which establishes, for nursing home
residents, federally protected rights enforceable through
§ 1983, Grammer, 570 F.3d at 525.
“[A] municipality cannot be held liable solely because
it employs a tortfeasor--or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior
theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)
(emphasis in original). Municipalities can be liable under § 1983
when “action pursuant to official municipal policy of some nature
cause[s] a constitutional tort.” Id. Liability arises where “the
action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” Id.
at 690.
Municipalities can also face liability under § 1983
“for constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received
7

formal approval through the body’s official decisionmaking
channels.” Id. at 690–91. A “custom” arises from practices by
state officials that are “so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.” Id. at
691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68
(1970)).
Under the Monell framework, a plaintiff must establish
that (1) the municipality had a policy or custom that deprived
the plaintiff of his or her constitutional rights; (2) the
municipality acted deliberately and was the moving force behind
the deprivation; and (3) the plaintiff’s injuries were caused by
the identified policy or custom. Id. at 692-94.
In the instant case, the parties quibble over several
aspects of Plaintiff’s Monell claim. But the core deficiency in
Plaintiff’s Amended Complaint arises at step one: Plaintiff has
not identified a municipal policy or custom that deprived her of
federally protected rights.
As an initial matter, Plaintiff pleads several factual
allegations that, when taken in the light most favorable to
Plaintiff, permit the Court to infer that Fair Acres’s employees
violated Plaintiff’s rights under the FNHRA and corresponding
OBRA regulations. See Am. Compl. ¶¶ 35(a), 35(l), 36, 42.
However, the question for purposes of Plaintiff’s Monell claim
is whether an employee’s failure to comply with these statutory
8

and regulatory rules amounts to a municipal policy or custom.
“There are three situations where acts of a government
employee may be deemed to be the result of a policy or custom of
the governmental entity for whom the employee works, thereby
rendering the entity liable under § 1983.” Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003).
First, the entity may be liable under § 1983 where a
policymaker “promulgates a generally applicable statement of
policy and the subsequent act complained of is simply an
implementation of that policy.” Id. (quoting Bd. of Cty. Comm’rs
of Bryan Cty. v. Brown, 520 U.S. 397, 417 (1997)). Here,
Plaintiff summarily alleges that a “policy and/or custom of
deprivation” caused her injury. Am. Compl. ¶ 23. But she does
not identify a specific statement of policy promulgated by an
official policymaker that, when implemented by Fair Acres’s
employees, deprived her of federally protected rights.
Therefore, Plaintiff’s claim fails under this first theory of
Monell liability.
Second, a policy or custom may be inferred where “no
rule has been announced as policy but federal law has been
violated by an act of the policymaker itself.” Natale, 318 F.3d
at 584 (quoting Bryan Cty., 520 U.S. at 417-18). “In this
situation, the choice of policy and its implementation are one,
and the first or only action will suffice to ground municipal
9

liability simply because it is the very policymaker who is
acting.” Bryan Cty., 520 U.S. at 418. Here, Plaintiff has not
identified a policymaker’s affirmative act that violated federal
law. Therefore, Plaintiff does not state a claim under the
second theory of Monell liability.
Third, a policy or custom may be inferred where “the
policymaker has failed to act affirmatively at all,” but “the
need to take some action to control the agents of the government
is so obvious, and the inadequacy of existing practice so likely
to result in the violation of constitutional rights, that the
policymaker can reasonably be said to have been deliberately
indifferent to the need.” Natale, 318 F.3d at 584 (quoting Bryan
Cty., 520 U.S. at 418).
In the instant case, the Amended Complaint can be
construed as asserting two potential approaches to this third
avenue of Monell liability: (1) Fair Acres failed to hire
additional and/or competent staff members, and (2) Fair Acres
failed to adequately train its staff members. See Am. Compl.
¶¶ 24, 35(c)-(g), 49-50.
As to the first approach, Plaintiff’s allegations find
no footing in Monell jurisprudence. The most analogous line of
cases involves Monell claims based on a theory of negligent
hiring or “failure to screen.” See, e.g., Wood v. Williams, 568
F. App’x 100, 105 (3d Cir. 2014) (nonprecedential) (explaining
10

that a plaintiff’s failure-to-screen claim under § 1983 must
demonstrate that “scrutiny of an applicant’s background would
lead a reasonable policymaker to conclude that the plainly
obvious consequence of the decision to hire the applicant would
be the deprivation of a third party’s federally protected right”
(quoting Bryan Cty., 520 U.S. at 410-11)).
But this theory has no applicability to Plaintiff’s
claims in the instant case. Plaintiff’s claims rest on the
notion that Fair Acres did not hire “enough” employees or
employees with the best credentials. See Am. Compl. ¶¶ 24,
35(c)-(g), 49-50. But she cites no authority for the proposition
that the Court may infer a policy or custom from such conclusory
allegations. Therefore, to the extent Plaintiff’s claim is based
on the failure to hire additional and/or competent staff
members, the Court will dismiss Plaintiff’s § 1983 claim against
Fair Acres.
Plaintiff also bases her § 1983 claim, in part, on a
failure-to-train theory. See, e.g., Am. Compl. ¶¶ 24, 35(c),
36(p), 49-50. To state a claim for failure to train, plaintiffs
must “identify a failure to provide specific training that has a
causal nexus with their injuries and must demonstrate that the
absence of that specific training can reasonably be said to
reflect a deliberate indifference to whether the alleged
constitutional deprivations occurred.” Gilles v. Davis, 427 F.3d
11

197, 207 n.7 (3d Cir. 2005). The plaintiff “must also
demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.”
Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997)
(quoting Bryan Cty., 520 U.S. at 404) (emphasis in original).
Here, Plaintiff does not identify a deficiency in
training. Plaintiff asserts a slew of conclusory allegations,
including that Defendants failed “to train and supervise the
nursing staff,” Am. Compl. ¶ 24; failed to “train appropriate
and licensed medical and nursing personnel to properly monitor,
supervise, and/or treat [Plaintiff]’s medical condition,” id.
¶ 35(c); failed “to properly train and/or supervise” employees
“in order to prevent [Plaintiff’s] injuries and or [sic]
accidents,” id. ¶ 49; failed “to properly train competent staff
members,” id. ¶ 50; and failed “to act on matters of policy,
supervision, training, and implementation,” id. ¶ 53. These
conclusory statements do not allege how the training was
deficient with any specificity and, without such, are not
entitled to the presumption of truth. And because Plaintiff has
failed to allege a deficiency in training, the Court need not
address the remaining elements of a failure-to-train claim.
Plaintiff’s claim fails on the first element.
In sum, Plaintiff fails to identify a municipal policy
or custom to support her Monell claim. Therefore, because
12

Plaintiff failed to amend the deficiencies previously identified
by the Court as to her original Complaint, Plaintiff’s § 1983
claim against Fair Acres will be dismissed with prejudice.
Finally, because the Court will dismiss all claims
against Fair Acres, which is the only presently-named
Defendant, Plaintiff’s motion to join additional parties will
be denied without prejudice as moot. See, e.g., Bolden v.
Niagara Fire Ins. Co., 814 F. Supp. 444, 445 (E.D. Pa. 1993)
(“Because the court agrees that plaintiffs have failed to state
a claim upon which relief can be granted, it will dismiss the
action and therefore need not consider joining [the additional
defendant] as a party.”).
III. CONCLUSION
For the foregoing reasons, the Court will dismiss with
prejudice Plaintiff’s Amended Complaint as to all claims against
Defendant Fair Acres. Plaintiff’s motion to join additional
parties will be denied without prejudice as moot. An appropriate
order follows.

13