United States District Court, W.D. Wisconsin
JOANNE FIERS, Special Administrator for the Estate of Richard Bendel, Plaintiff,
LA CROSSE COUNTY, d/b/a Lakeview Health Center; MISSISSIPPI VALLEY HEALTH SERVICES COMMISSION, d/b/a Lakeview Health Center; WANDA PLACHECKI; WEST BEND MUTUAL INSURANCE COMPANY; JEREMY HOLM; LILLI LEIN; and JANET LOY-MINOR, Defendants and WISCONSIN DEPARTMENT OF HEALTH SERVICES, c/o HMS Wisconsin Casualty Recovery, Involuntary Plaintiff,
September 17, 2015.
Joanne Fiers, Special Administrator for the Estate of Richard
Bendel, Plaintiff: Joel E. Smith, Mark R. Kosieradzki, LEAD
ATTORNEYS, Andrew D. Gross, Kosieradzki Smith Law Firm,
Plymouth, MN; Terry A. Davis, LEAD ATTORNEY, Rice, Heitman &
Davis, S.C., Sparta, WI.
Wisconsin Dept. of Health Services, c/o HMS Wisconsin
Casualty Recovery, Involuntary Plaintiff, Plaintiff: Jesus
Gabriel Garza, State of Wisconsin Department of Health
Services, Madison, WI.
Crosse County, d/b/a Lakeview Health Center, Mississippi
Valley Health Services Commission, d/b/a Lakeview Health
Center, Wanda Plachecki, West Bend Mutual Insurance Company,
Janet Loy-Minor, Defendants: Stephen Oliver Plunkett, LEAD
ATTORNEY, Steven P. Aggergaard, Bassford Remele, Minneapolis,
Jeremy Holm, Lilli Lein, Defendants: Steven P. Aggergaard,
Bassford Remele, Minneapolis, MN.
D. PETERSON, District Judge.
Bendel resided at Lakeview Health Center, a skilled nursing
facility operated by defendants La Crosse County and the
Mississippi Valley Health Services Commission. Mr. Bendel
suffered from severe dementia and he was a known elopement
risk. In February, 2014, he wandered off and fell, suffering
fatal injuries. Plaintiff Joanne Fiers is Mr. Bendel's
sister and the administrator of his estate. She asserts
state-law claims for negligence and punitive damages. The
case is in federal court because she also brings a claim
under 42 U.S.C. § 1983, alleging that defendants
violated Mr. Bendel's rights under the Federal Nursing
Home Reform Act.
move to dismiss Fiers's claims for failure to state a
claim upon which relief may be granted, pursuant to Federal
Rule of Civil Procedure 12(b)(6). Dkt. 21. Defendants contend
that: (1) as a threshold matter, the court should dismiss
Count I because the Federal Nursing
Home Reform Act, 42 U.S.C. § 1396r (FNHRA), does not
provide a basis for a 42 U.S.C. § 1983 claim; (2)
alternatively, the court should dismiss Count I because Fiers
has failed to sufficiently plead that an underlying "
custom" or " policy" caused the alleged
federal rights violations; (3) the court should dismiss Count
I because Fiers's allegations generally fail to state a
claim upon which relief may be granted; and (4) the court
should dismiss Counts II, III, and IV because Fiers failed to
comply with Wis. Stat. § 893.80. Id. The first
issue is decisive. The court will grant defendants'
motion to dismiss Count I and it will decline to exercise
supplemental jurisdiction over Counts II-IV.
also move the court for an order striking materials Fiers
submitted in opposition to defendants' motion to dismiss
because they fall outside of the pleadings. Dkt. 32. In light
of the court's disposition of defendants' motion to
dismiss, the court will deny defendants' motion to strike
evaluating the motions before the court, the " court
must accept the complaint's well-pleaded factual
allegations as true and draw reasonable inferences from those
allegations in the plaintiff's favor." Transit
Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir.
2001). Accordingly, the facts that follow are drawn from the
La Crosse County and the Mississippi Valley Health Services
Commission own and operate Lakeview Health Center as a "
skilled," Medicaid-certified nursing facility which
receives federal funding under Title XIX of the Social
Security Act, 42 U.S.C. § § 1396-1396v.
are all affiliated with Lakeview Health Center and include La
Crosse County d/b/a Lakeview Health Center, the Mississippi
Valley Health Services Commission d/b/a Lakeview Health
Center, Wanda Plachecki (Lakeview Health Center
Administrator), Janet Loy-Minor (Lakeview Health Center
Director of Nursing), Lilli Lein (Lakeview Health Center
certified nursing assistant), Jeremy Holm (Lakeview Health
Center certified nursing assistant), and West Bend Mutual
Insurance Company, which provides liability insurance
coverage to La Crosse County and the Mississippi Valley
Health Services Commission with respect to Lakeview Health
at Lakeview Health Center knew that Mr. Bendel: (1) suffered
from vascular dementia; (2) was an " elopement
risk" ; and, as a result, (3) required increased
supervision. On February 16, 2014, defendant Jeremy Holm, a
certified nursing assistant, observed Mr. Bendel walking
toward the nursing home's north exit but failed to ensure
that Mr. Bendel did not exit the facility. Defendant Holm and
defendant Lilli Lein, also a certified nursing assistant,
ignored the exit door's audible alarm as Mr. Bendel left.
Mr. Bendel walked across a roadway, tripped on a curb, fell,
and sustained serious injuries. He died approximately four
days later. Several days after Mr. Bendel's death, the
Wisconsin Department of Health and Human Services
investigated the " elopement incident" and cited
Lakeview Health Center with an " Immediate
alleges deprivation of civil rights, pursuant to 42 U.S.C.
§ 1983, against defendants La Crosse County and the
Mississippi Valley Health Services Commission; common law
negligence against defendants Lein and Holm (asserted
vicariously against defendants La Crosse County and the
Mississippi Valley Health Services Commission); professional
negligence against defendants La Crosse County, the
Mississippi Valley Health Services Commission, Plachecki, and
Loy-Minor; and a claim for punitive ...