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Coleen Sanguinetti, As An Individual and v. Avalon Health Care

June 26, 2012

COLEEN SANGUINETTI, AS AN INDIVIDUAL AND PERSONAL REPRESENTATIVE OF THE ESTATE OF MARY E. PERRIN, SHARON BETTENCOURT, AS AN INDIVIDUAL AND SUCCESSOR IN INTEREST TO THE ON ESTATE OF MARY E. PERRIN, STEVE PACHEO, AS AN INDIVIDUAL AND SUCCESSOR IN INTEREST TO THE ESTATE OF MARY E. PERRIN,
PLAINTIFF,
v.
AVALON HEALTH CARE, INC. DBA AVALON OF CALIFORNIA, LLC; AVALON CARE CENTER - MERCED FRANCISCAN, LLC, DBA FRANCISCAN CONVALESCENT HOSPITAL; 3169 M STREET, LLC, LISA CHAPPELOW, CYNTHIA SELMO, DOES 1-100,
DEFENDANTS.



MEMORANDUM OPINION AND ORDER DEFENDANTS' MOTION TO DISMISS Doc. # 5

This is an action for damages pursuant to 42 U.S.C. § 1983 by plaintiffs Colleen Sanguinetti, individually and as personal representative of the estate of Mary E. Perrin ("Decedent"), and Sharon Bettencourt and Steve Pacheo as individuals and as successors in interest to the estate of Decendent (collectively, "Plaintiffs") against Avalon Health Care, Inc., dba Avalon Care Center - Merced Franciscan, dba Franciscan Convalescent Hospital, and individuals Lisa Chappelow and Cynthia Selmo (collectively, "Defendants"). The action arises out of the injury and eventual death of Decedent while a resident at Franciscan Convalescent Hospital ("Franciscan"). Plaintiff's first claim for relief alleges "wrongful death" pursuant to 42 U.S.C. § 1983 and the second claim for relief alleges a claim for "survival" on behalf of the Plaintiffs in their individual capacities also pursuant to section 1983. The remaining claims for relief allege negligence, breach of contract, wilful misconduct, constructive fraud, elder abuse and unfair business practices, each under California law.

FACTUAL BACKGROUND

The central event giving rise to this action was a fall and related injury sustained by Decedent as she was being transferred from her bed to a chair by an employee using a type of mechanical lift. Plaintiff alleges the fall and injury occurred because the staffing available at the time was insufficient to accomplish the transfer to the chair with two persons instead of by the single employee who attempted the transfer. Plaintiffs allege essentially that the non-availability of qualified employees to manage such needs as patient bed-to-chair transfers is a systemic problem caused by Defendants' failure to devote sufficient resources to meet quality-of-care standards imposed by various federal statutes, principally Medicare, Medicaid, the Omnibus Budget Reconciliation Act of 1987 ("OBRA") and the Federal Nursing Home Reform Act ("FNHRA"). Decedent was not able to recover from the injury she sustained as a result of the fall and ultimately died from complications that were traceable in part to the pain caused by the injury.

Plaintiffs' first claim for relief alleges that state and federal governmental rules substantially regulate Defendants' conduct and lists a number of specific regulations that were allegedly transgressed when a single employee attempted to transfer Decedent from bed to chair resulting in her injury. Some additional information is appended to the complaint including a copy of Decedent's Death Certificate, copies of what appear to be photographs and several pages that are copies of summaries of findings by California State Health Department investigations and responses of Defendants to deficiencies found in those investigations.

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").

The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).

DISCUSSION

The court's jurisdiction in this action is predicated on the existence of federal subject matter jurisdiction. The only claims invoking federal subject matter are Plaintiffs' first and second claims for relief, which are alleged pursuant to 42 U.S.C. § 1983, which provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[. . . .]

It is well settled that section 1983 confers no rights in itself but is only a means of vindicating rights otherwise secured by the Constitution or laws of the United States. Chapman v. Huston Welfare Rights Organization, 441 U.S. 600, 617-618 (1979). Although section 1983 may be invoked to secure a right created by a federal statute, as well as one created by the Constitution, Maine v. Thiboutot, 448 U.S. 1, 4 (1980), not all federal statutory enactments create private rights that are enforceable under section 1983. In particular, enactments of Congress under the spending power of the United States typically do not confer individual rights that can be enforced under section 1983. Gonzaga University v. Doe, 536 U.S. 273, 280 (2002). "Unless Congress 'speak[s] with a clear voice,' and manifests an 'unambiguous' intent to confer individual rights, federal funding provisions provide no basis for private enforcement by § 1983." Id. (quoting Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)).

The court notes that Plaintiffs' complaint is replete with allegations attempting to show that the individuals and entities named as Defendants were operating "under color of law" for purposes of section 1983. Similarly, Defendants motion to dismiss addresses the various doctrines under which state action may be inferred and argues none of these doctrines apply. However, as to the more fundamental question of whether any of the federal statutes cited in the complaint confer individual rights that can be vindicated under section 1983, the complaint merely makes the conclusory assertion that "[t]he specific detailed regulatory provisions as well as the statutes in question create rights which are enforceable by the Plaintiffs ...


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