THOMAS et al v. WESTMORELAND COUNTY

Filing 10

MEMORANDUM OPINION indicating that 6 Defendants' Motion to Dismiss is granted for failure to state claims upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6); both Counts of the Complaint are dismissed without prejudice to amendment with sufficient facts to state a claim. See Memorandum Opinion for further details. Signed by Judge W. Scott Hardy on 4/27/2021. (lwp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES E. THOMAS, MARSHA HALL,
and MARK THOMAS, Individually and as
Co-Administrators of the ESTATE OF
ELIZABETH M. THOMAS, Deceased,
Plaintiffs,
v.
WESTMORELAND COUNTY; and
WESTMORELAND COUNTY d/b/a
WESTMORELAND MANOR,
Defendants.

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Civil Action No. 20-1903

MEMORANDUM OPINION
Presently before the Court is the Rule 12(b)(6) Motion to Dismiss and brief in support
thereof filed by Defendants Westmoreland County and Westmoreland County d/b/a Westmoreland
Manor (Docket Nos. 6, 7), the response in opposition thereto filed by Plaintiffs Charles E. Thomas,
Marsha Hall, and Mark Thomas, who have brought suit individually and as co-administrators of
the estate of Elizabeth M. Thomas, deceased (Docket No. 8), and Defendants’ reply (Docket No.
9). For the reasons set forth herein, Defendants’ Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) is granted without prejudice to amendment with sufficient facts to state
a claim.
I.

Background
As alleged in the Complaint, Plaintiffs are the adult children of the late Elizabeth M.

Thomas (hereinafter, “Ms. Thomas”) and are also the administrators of her estate. (Docket No. 1,
¶¶ 4, 5). Plaintiffs contend that Westmoreland County is a governmental agency that owned and

operated Westmoreland Manor, a skilled nursing facility, at the time of the events alleged in this
action (hereinafter, “Defendants”). (Id. ¶¶ 6-9).
According to the Complaint, on December 4, 2018, Ms. Thomas was admitted to
Westmoreland Manor following a hospitalization at Excela Hospital. (Docket No. 1, ¶ 18).
Although Ms. Thomas was transferred back to Excela Hospital the following day, she was
readmitted to Westmoreland Manor two days later, on December 7, 2018. (Id. ¶¶ 20, 21). As
alleged, after a series of events involving urinary retention as well as some other health issues, Ms.
Thomas was again transferred back to Excela Hospital on January 21, 2019. (Id. ¶ 40). Plaintiffs
contend that Ms. Thomas was admitted to the hospital with diagnoses of pancreatitis, UTI,
dehydration and elevated magnesium and BUN. (Id. ¶ 44).
Plaintiffs aver that on January 27, 2019, Ms. Thomas was readmitted to Westmoreland
Manor and, upon her discharge from Excela Hospital, it was noted that she had been treated at the
hospital for pancreatitis, acute kidney injury, elevated blood urea nitrogen, vomiting, dehydration,
UTI and hypotension. (Docket No. 1, ¶¶ 48, 49). On January 30, 2019, a nutrition evaluation
completed at Westmoreland Manor showed that Ms. Thomas had experienced a ten-pound weight
loss the previous month. (Id. ¶ 52). On February 1, 2019, Ms. Thomas’ laboratory results were
processed and indicated dehydration and infection. (Id. ¶¶ 53, 54). Plaintiffs claim that a
Westmoreland Manor nurse practitioner reviewed the laboratory results and ordered follow-up in
one week with fluid encouragement. (Id. ¶ 55).
According to Plaintiffs, the next day, February 2, 2019, a Westmoreland Manor staff nurse
documented Ms. Thomas’ poor fluid intake and, that evening, after nursing staff were unable to
start an IV on Ms. Thomas, she was transferred back to Excela Hospital. (Docket No. 1, ¶¶ 57,
61). Upon admission to the hospital, Ms. Thomas was diagnosed with severe sepsis, UTI, acute

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kidney failure, pneumonia, hypernatremia and altered mental status, while laboratory studies
indicated dehydration. (Id. ¶¶ 63, 64). According to the Complaint, over the next several days,
Ms. Thomas’s condition deteriorated, and on February 8, 2019, Ms. Thomas died. (Id. ¶¶ 65, 66).
Ms. Thomas’ death certificate indicated that she died of respiratory failure and pneumonia. (Id.
¶ 67).
On December 8, 2020, Plaintiffs filed their Complaint, alleging two claims against
Defendants: (I) Deprivation of Civil Rights Enforceable via 42 U.S.C. § 1983; and (II) Wrongful
Death. Plaintiffs seek damages in excess of $75,000.00, plus interest, costs of suit, and attorney
fees. Defendants have filed a motion to dismiss both counts of the Complaint pursuant to Rule
12(b)(6) for failure to state claims upon which relief can be granted.
II.

Standard of Review
In considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the

complaint must be accepted as true and must be construed in the light most favorable to the
plaintiff, and the court must “‘determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.’” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). While 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,” the complaint must “‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’”

Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555

(additional internal citation omitted)). Moreover, while “this standard does not require ‘detailed
factual allegations,’” Rule 8 “demands more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555); Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555).
It should be further noted, therefore, that in order 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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The Supreme
Court has noted that 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. (citing Twombly, 550 U.S. at 556). The standard “‘does not impose a probability
requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of’ the necessary element.” Phillips, 515 F.3d at
234 (quoting Twombly, 550 U.S. at 556). Moreover, the requirement that a court accept as true
all factual allegations does not extend to legal conclusions; thus, a court is “‘not bound to accept
as true a legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555 (internal citation omitted)).
III.

Legal Analysis
A. Count I: Deprivation of Civil Rights via 42 U.S.C. § 1983
In Count I of their Complaint, Plaintiffs allege a claim against Defendants for deprivation

of Ms. Thomas’ civil rights pursuant to 42 U.S.C. § 1983. (Docket No. 1, ¶¶ 68-80). Plaintiffs
contend that Westmoreland Manor is bound by the Federal Nursing Home Reform Act
(“FNHRA”), which was passed as part of the Omnibus Budget Reconciliation Act of 1987
(“OBRA”), Pub. L. No. 100-203, §§ 4201-4218, 101 Stat. 1330, 1330-160 to -221 (1987) (codified
at 42 U.S.C. §§ 1395i-3, 1396r), and that it is also bound by the OBRA/FNHRA implementing
regulations found at 42 C.F.R. § 483 et seq. (Id. ¶¶ 70, 71). Plaintiffs note that the specific detailed

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regulatory provisions as well as the statutes themselves create rights which are enforceable
pursuant to 42 U.S.C. § 1983. (Id. ¶ 72).
Section 1983 functions as a “vehicle for imposing liability against anyone who, under color
of state law, deprives a person of ‘rights, privileges, or immunities secured by the Constitution and
laws.’” Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 525 (3d Cir. 2009)
(quoting 42 U.S.C. § 1983 (emphasis added)). Here, Plaintiffs allege that Westmoreland Manor
acted under color of state law because it is owned and operated by Westmoreland County. The
Third Circuit has held that provisions of the FNHRA “confer individual rights that are
presumptively enforceable through § 1983.” Id. at 532. It is clear that the facts alleged by
Plaintiffs, viewed in the light most favorable to them, sufficiently allege a violation of Ms.
Thomas’ federally protected rights under the FNHRA. See Robinson v. Fair Acres Geriatric Ctr.,
722 Fed. Appx. 194, 197 (3d Cir. 2018).
To hold Defendants liable for such violations under Section 1983, however, Plaintiffs must
allege more than a violation of Ms. Thomas’ rights by Defendants’ employees; Plaintiffs must also
sufficiently plead that those alleged violations are attributable to Defendants. “‘[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.’” Id. (quoting Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 691 (1978)). Thus, the alleged violation of rights must have been
caused by actions that were taken pursuant to a municipal “policy” or “custom.” See id. at 198
(citing Natale v. Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d Cir. 2003)); see
also Monell, 436 U.S. at 690-94 (explaining what has been referred to as the Monell framework
or Monell liability). “A policy is made ‘when a decisionmaker possess[ing] final authority to
establish municipal policy with respect to the action issues a final proclamation, policy or edict.’”

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Natale, 318 F.3d at 584 (quoting Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)). A
“custom,” on the other hand, involves “practices of state officials . . . so permanent and well settled
as to constitute a ‘custom or usage’ with the force of law.” Monell, 436 U.S. at 691.
Acts by a government employee may be deemed to be the result of a policy or custom of
the entity for whom the employee works in three situations: (1) “where ‘the appropriate officer or
entity promulgates a generally applicable statement of policy and the subsequent act complained
of is simply an implementation of that policy;’” (2) “where ‘no rule has been announced as policy
but federal law has been violated by an act of the policymaker itself;’” and (3) “where ‘the
policymaker has failed to act affirmatively at all, [though] 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 Bd. of County
Comm’rs of Bryan County v. Brown, 520 U.S. 397, 417-18 (1997) (emphasis added, and internal
quotation marks and citation omitted)).
It is unclear which of these theories of liability Plaintiffs are pursuing in their Complaint,
which broadly alleges that Westmoreland Manor “as a custom and policy, failed to adhere to the
above statutes and regulations and/or, in the alternative, that Defendant Westmoreland Manor
failed to implement and follow appropriate custom and policies and/or, in the alternative,
Defendant Westmoreland Manor had unwritten customs and policies that did not adhere to the
applicable statutes and regulations.” (Docket No. 1, ¶ 73). Although Plaintiffs argue that they
have alleged more specifically Defendants’ failure to comply with a number of separate provisions
of the FNHRA and its regulations, these alleged failures, which Plaintiffs list in a series of
subparagraphs in the Complaint, are also extremely broad and lacking in factual specificity. (Id.

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¶ 74(a)-(s)). For example, the first subparagraph alleges that Westmoreland Manor failed to
comply with the statutes and regulations “[b]y failing, as a custom and policy, to care for patients,
including Ms. Thomas, in a manner than promoted maintenance or enhancement of her life, as
required by 42 C.F.R. § 483.24 and 42 U.S.C. § 1396r(b)(1)(A).” (Id. ¶ 74(a)). While such
averment alleges a statutory violation, it does not allege specific facts to support that allegation,
but simply restates the language of the statute itself. See 42 U.S.C. § 1396r(b)(1)(A) (“A nursing
facility must care for its residents in such a manner and in such an environment as will promote
maintenance or enhancement of the quality of life of each resident”).
Plaintiffs also assert that they have provided support for their claims by alleging that
Westmoreland Manor was cited numerous times between January and September of 2018 for
regulatory violations, and that these citations provide evidence that such failures are part of a
custom or policy. (Id. ¶¶ 75, 76). Plaintiffs contend that these regulatory violations show that
Westmoreland Manor “as a policy and/or custom and practice was deliberately indifferent to Ms.
Thomas’ needs” and “deprived her of federally guaranteed and protected rights.” (Id. ¶ 77). Here
again, however, Plaintiffs’ list of alleged violations is extremely broad (including “Care planning,”
“Abuse/neglect,” “Resident records,” “Failure to train staff,” “Resident rights,” and
“Assessments”), and it fails to provide specific factual support for Plaintiffs’ allegations regarding
Defendants’ policies or customs.
Thus, because the Complaint provides no additional facts about Defendants’ alleged
customs or policies, such general references to such policies or customs are merely conclusory.
Additionally, Plaintiffs do not identify any particular policymakers in their Complaint, nor do they
plead that any particular policymakers took affirmative action that caused Ms. Thomas’ injuries,
nor do Plaintiffs plead that any actions taken by particular policymakers could be fairly treated as

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policy or custom. See Robinson, 722 Fed. Appx. at 198. Accordingly, since Plaintiffs do not
allege in their Complaint that Ms. Thomas’ injuries were “caused by affirmative actions on the
part of a particular policymaker,” their claim cannot proceed based on either of the first two
theories of establishing liability. Id.; see Thomas v. County of Chester, Pocopson Home, 312 F.
Supp. 3d 448, 454 (E.D. Pa. 2018); Doyle v. Neshaminy Manor, Inc., 2018 WL 1954119, at *5
(E.D. Pa. Apr. 25, 2018).
Nevertheless, in response to Defendants’ motion to dismiss, Plaintiffs claim that their
Complaint is based at least in part on Defendants’ failure to train, monitor and supervise their
employees, which could proceed under the third theory of establishing liability, a failure to act that
demonstrates deliberate indifference. See Robinson, 722 Fed. Appx. at 198-99 (discussing Monell,
436 U.S. at 658, and Natale, 318 F.3d at 575). In order for a failure-to-train or failure-to-supervise
claim to succeed, however, Plaintiffs must show policymakers’ “‘continued adherence to an
approach that they know or should know has failed to prevent tortious conduct by employees.’”
Id. at 199 (quoting Bryan County, 520 U.S. at 407). Also, “‘for liability to attach in this
circumstance the identified deficiency in a [municipal]ity’s training program must be closely
related to the ultimate injury.’” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 391 (1989)).
Upon review of the Complaint, the Court finds that the allegations contained therein are
insufficient to meet these standards. First, the Complaint contains no allegations that Defendants
failed to train their employees. Additionally, the only reference in the Complaint to Defendants’
monitoring or supervision of employees is a general allegation that Westmoreland Manor failed,
“as a custom and policy, to ensure that [its] administrator and director of nursing properly
monitored and supervised subordinate staff, thereby failing to ensure the health and safety of
residents or patients, including Mrs. Thomas, in derogation of 42 C.F.R. § 483.75 and 42 U.S.C.

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§ 1396r(b)(B).” (Docket No. 1, ¶ 74(s)). Such averment, quite simply, does not allege that a
specific failure to monitor or supervise was closely related to the ultimate injury allegedly suffered
by Ms. Thomas.
Additionally, although Plaintiffs allege that Westmoreland Manor was “cited” for a number
of “violations” in 2018—and while citations for regulatory violations could in some instances
provide evidence of relevant inadequate training—the number and character of the citations pled
in the Complaint do not provide specific factual evidence of Defendants’ failure to train or
supervise employees in areas relevant to the injuries alleged here. See Robinson, 722 Fed. Appx.
at 199-200. Instead, Plaintiffs merely list eight different violations by broad category and note in
a footnote that the citations can be found on “the Pennsylvania Department of Health’s website
under the search tab for facilities.” (Docket No. 1 at 12, n.1). Furthermore, the website that
appears to be that described by Plaintiffs (no actual web address is provided) contains an enormous
amount of information, and it is not apparent to the Court which information on the website is
alleged to be relevant to, and supportive of, Plaintiffs’ claims.
Thus, Plaintiffs make no allegations in their Complaint as to how the listed citations relate
to Defendants’ alleged failures to act affirmatively, nor do Plaintiffs allege how those failures
ultimately resulted in the harm suffered by Ms. Thomas. See, e.g., Robinson, 722 Fed. Appx. at
199-200 (finding that a Section 1983 claim was sufficiently pled under a failure-to-train theory
where plaintiff alleged the facility’s training to be inadequate; plaintiff’s injuries involved
infection, gangrene and loss of her leg; the facility allegedly received deficiency citations for
failing to maintain infection control; and the deficiency in the training program included failure to
maintain infection control; then the identified deficiency in the training program was closely
related to the ultimate injury). In fact, Plaintiffs make no attempt whatsoever to draw a connection

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between Defendants’ alleged violations of statutes and/or regulations and the actual harm allegedly
suffered by Ms. Thomas.

Without such a connection, the Complaint is insufficient.

See

Schlaybach v. Berks Heim Nursing & Rehabilitation, 434 F. Supp. 3d 342, 357-58 (E.D. Pa. 2020)
(explaining that a violation of federal law, standing alone, is not enough for Monell liability, and
that “a plaintiff must still establish that the injury was the direct result of a municipal policy or
custom”). Therefore, Plaintiffs have also failed to allege a claim against Defendants based on the
third theory of establishing liability, a failure to act (here, a failure to supervise, monitor or train)
demonstrating deliberate indifference to a need to take action.
Accordingly, Plaintiffs have failed to state a claim for deprivation of civil rights under
Section 1983 based on Defendants’ alleged violations of the FNHRA. Count I of the Complaint
will therefore be dismissed without prejudice.
B. Count II: Wrongful Death
In Count II of their Complaint, Plaintiffs seek to recover damages from Defendants for the
alleged wrongful death of Ms. Thomas. (Docket No. 1, ¶¶ 81-83). Count II does not, however,
specify the law pursuant to which such relief is sought.
To the extent that Plaintiffs’ wrongful death claim is brought pursuant to Pennsylvania law,
such claim should be dismissed because Defendants are immune from tort liability under the
Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. C.S. § 8541. The PSTCA
provides Pennsylvania municipalities and local agencies with general immunity from tort liability.
See id.; Thomas, 312 F. Supp. 3d at 452. Since Plaintiffs allege that Westmoreland Manor is liable
in this action because it is owned and operated by Westmoreland County, Westmoreland Manor is
alleged to be a “local agency.” See 42 Pa. C.S. § 8541. Additionally, upon consideration of the
allegations in the Complaint, the Court notes that none of the PSTCA’s exceptions to immunity

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are alleged to apply to this case. See id. § 8542. Therefore, under the PSTCA, Defendants are
immune from tort claims brought against them pursuant to Pennsylvania law.
However, the Third Circuit has held that the PSTCA, “although effective against a state
tort claim, has no force when applied to suits under the Civil Rights Acts.” Wade v. City of
Pittsburgh, 765 F.2d 405, 407 (3d Cir. 1985). Accordingly, to the extent that Plaintiffs seek in
Count II to recover damages pursuant to 42 U.S.C. § 1983, the PSTCA cannot be used to immunize
Defendants against such claim. Regardless, because Plaintiffs base their claim in Count II on the
same allegations as those relied upon in Count I – allegations that the Court finds to be insufficient
– Count II of the Complaint must be dismissed without prejudice for the same reasons set forth,
supra, with regard to Count I.
IV.

Conclusion
For the reasons stated, Defendants’ Motion to Dismiss is GRANTED for failure to state

claims upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
Accordingly, both Counts of the Complaint are DISMISSED WITHOUT PREJUDICE to
amendment with sufficient facts to state a claim.
An appropriate Order follows.

Dated: April 27, 2021

s/ W. Scott Hardy
W. Scott Hardy
United States District Judge

cc/ecf: All counsel of record

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