Peters v . Applewood, et a l . CV-12-233-PB 8/30/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Beatrice M . Peters, Administatrix of the Estate of Sylvia Robinson

v. Case N o . 12-cv-233-PB Opinion N o .

Applewood Care and Rehabilitation Center et a l .

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. Cushing has filed

a motion to dismiss. 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 long-

term 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.

2 Robinson subsequently suffered sepsis from a suspected

urinary tract infection, renal insufficiency, and hypotension.

She died on April 1 3 , 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. See Ashcroft v .

Iqbal,

6 2 , 678 (2009). 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.”

(citations omitted).

In deciding a motion to dismiss, I employ a two-pronged

approach. See Ocasio-Hernández v . Fortuño-Burset,

,

12 (1st Cir. 2011). First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact

3 or threadbare recitals of the elements of a cause of action.”

(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.

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.

The plausibility requirement “simply calls for enough fact

to raise a reasonable expectation that discovery will reveal

evidence” of illegal conduct. Bell Atl. Corp. v . Twombly,

4 4 , 556 (2007). 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.,

5 , 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. In

4 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.” Santiago v . Puerto Rico,

1 , 68 (1st Cir.

2011). 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,

3 0 , 838 (1982)

(internal quotation marks omitted).

5 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 o n , Medicaid and Medicare funds . . . [and] is

necessarily and mandatorily regulated by the federal government

under 42 U.S.C. § 1396r[.]” Compl. ¶ 3 2 , Doc. N o . 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.,

(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 Blum v . Yaretsky,

9 1 , 1004, 1011 (1982).

1 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.,

2 2 , 929 (1982). 6 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.,

(5th

Cir. 2003) (holding that a privately operated prison is a state 7 actor because it performs a public function traditionally

reserved for the state); Horvath v . Westport Library Ass’n.,

4 7 , 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

(c)(3); Camelio v . Am. Fed’n,

(1st Cir. 1998).

2 In light of my disposition of the case, I deny as moot defendants’ motion for a hearing (Doc. N o . 15) on the motion to dismiss. 8 IV. CONCLUSION

For the aforementioned reasons, I grant the motion to

dismiss the section 1983 claim against all defendants (Doc. N o .

3 ) . Pursuant to

(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 3 0 , 2012

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

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