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Beatrice M. Peters, Administatrix of the Estate of Sylvia Robinson v. Applewood Care and Rehabilitation Center et al.

August 30, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 150


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.


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.

Robinson subsequently suffered sepsis from a suspected urinary tract infection, renal insufficiency, and hypotension. She died on April 13, 2010, seven days after her fall. During her time at the facility, Robinson also suffered from pressure ulcers, malnourishment, and dehydration.


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, 556 U.S. 662, 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." Id. (citations omitted).

In deciding a motion to dismiss, I employ a two-pronged approach. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I screen the complaint for statements that "merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action."

Id. (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. Id. 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. Id. 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, 550 U.S. 544, 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." Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 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)).


Cushing moves to dismiss all the claims to the extent they seek to hold her personally liable for Robinson's injuries. In 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 ...

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