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Fiers v. La Crosse County

United States District Court, W.D. Wisconsin

September 18, 2015

JOANNE FIERS, Special Administrator for the Estate of Richard Bendel, Plaintiff,
v.
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,

         Decided September 17, 2015.

          For 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.

         For 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.

         For 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, Janet Loy-Minor, Defendants: Stephen Oliver Plunkett, LEAD ATTORNEY, Steven P. Aggergaard, Bassford Remele, Minneapolis, MN.

         For Jeremy Holm, Lilli Lein, Defendants: Steven P. Aggergaard, Bassford Remele, Minneapolis, MN.

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         OPINION & ORDER

         JAMES D. PETERSON, District Judge.

         Richard 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.

         Defendants 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

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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.

         Defendants 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 as moot.

         ALLEGATIONS OF FACT

         When 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 Amended Complaint.

         Defendants 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.

         Defendants 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 Center.

         Staff 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 Jeopardy" violation.

         Fiers 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

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Loy-Minor; and a claim for punitive ...


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