OPINION & ORDER
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
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 plaintiffs favor.” Transit Exp., Inc. v. Ettinger,
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 Lake-view 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 (Lake-view 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
ANALYSIS
The court has original jurisdiction over Fiers’s 42 U.S.C. § 1983 claim, pursuant to 28 U.S.C. § 1331, because it raises a federal question. The court may exercise supplemental jurisdiction over Fiers’s remaining state law claims because the claims are so related to Fiers’s section 1983 claim that they form part of the same case or controversy, pursuant to 28 U.S.C. § 1367(a).
Because defendants answered before moving to dismiss pursuant to Rule 12(b)(6), the court necessarily construes defendants’ motion as one for judgment on the pleadings, pursuant to Rule 12(c). Fed.R.Civ.P. 12(b), (c); Forseth v. Vill. of Sussex,
The threshold question is whether 42 U.S.C. § 1983 provides a cause of action for violations of the FNHRA. Because the court will ultimately conclude that Fiers does not have a cause of action under section 1983, the court will dismiss Count I. Because Fiers’s only federal claim is dismissed, the court will decline to exercise supplemental jurisdiction over Counts II-IV.
A. The FNHRA does not confer federal rights enforceable under section 1983
Fiers may allege a claim for violations of the FNHRA via section 1983 if and only if the FNHRA creates and confers federal rights. Section 1983 provides a cause of action to enforce individual rights conferred by federal statute as well as the Constitution.
Under Blessing, courts consider three factors when determining whether a federal statute creates and confers a federal right: (1) “Congress must have intended that the provision in question benefit the plaintiff’; (2) the asserted right must not be “so vague and amorphous that its enforcement would strain judicial competence”; and (3) “the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.” Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health,
In Gonzaga University v. Doe, the Supreme Court clarified the Blessing factors, holding that federal statutes must unambiguously create and confer federal rights to support a cause of action under section 1983.
The issue now before the court is whether the FNHRA confers federal rights under the Blessing-Gonzaga standard articulated above. The parties do not dispute that the FNHRA provisions at issue in the present case are mandatory, thus satisfying the third Blessing factor. Accordingly, the court’s analysis turns on the first two Blessing factors.
First, the court considers whether Congress intended the FNHRA to confer a right to Mr. Bendel. Congress passed the FNHRA “to provide for the oversight and inspection of nursing homes that participate in Medicare and Medicaid programs.” Grammer v. John J. Kane Reg’l Centers-Glen Hazel,
The portions of the FNHRA at issue in this case do not contain unambiguous, rights-creating language. Congress drafted the FNHRA in terms of what nursing facilities must do to receive government funding. Generally speaking, “statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’ ” Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin.,
By contrast, the Seventh Circuit has held that other portions of the Medicaid Act do create and confer federal rights enforceable under section 1983. These cases are instructive because they identify examples of statutory language sufficiently clear to confer federal rights. In Bontrager v. Indiana Family & Social Senices Administration, the plaintiff alleged that by instituting a $1,000 annual coverage cap on dental services, Indiana violated 42 U.S.C. § 1396a(a)(10), namely, the requirement that “[a] State plan for medical assistance must ... provide ... for making medical assistance available ... to all [eligible] individuals.”
The Seventh Circuit considered a second aspect of the Medicaid Act in Planned Parenthood. In that case, the court of appeals held that section 1396a(a)(23) confers a federal right because it “uses individually focused terminology” and is “unmistakably phrased in terms of the persons benefited.”
Because the portions of the FNHRA at issue in this case focus on facility regulations and do not unambiguously demonstrate that Congress intended the FNHRA to confer rights on Mr. Bendel, consideration of the first Blessing factor, as modified by Gonzaga, suggests that the FHNRA does not confer federal rights.
Turning to the second Blessing factor, the court considers whether Mr. Bendel’s alleged “rights” are so vague and amorphous that enforcement would strain judicial competence. The court concludes that they are. Fiers’s Amended Complaint does not identify any specific statutory entitlements within the FNHRA. Rather, Fiers concedes that the Amended Complaint only generally asserts that defendants “had inadequate policies and plans of care to properly supervise and provide care for its residents[.]” Dkt. 29, at 4. Fiers attempts to enforce Mr. Bendel’s vague rights to maintenance or enhancement of his quality of life and to attain or maintain the highest practicable physical, mental, and psychosocial well-being.
In her opposition memorandum, Fiers points to what she contends are several “specifically enumerated” rights within the FNHRA: a resident’s right to reasonable accommodations, right to freely choose care and treatment options, right to be free from physical or mental abuse and involuntary seclusion or restraint, and right to privacy and confidentiality. Dkt. 29, at 7. However, these “rights” áre irrelevant to the court’s analysis because Fiers does not plead violations of these particular portions of the FNHRA. The court’s analysis does not concern this section of the FNHRA. Fiers pulls this list of “specifically enumerated” rights from subsection (c)(1)(A) of the FNHRA; Fiers’s Amended Complaint does not refer to this section. Dkt. 12, ¶ 73 (identifying violations of 42 U.S.C. §§ 1396r(b)(l)(A), (b)(1)(B), (b)(2)(A), (b)(3)(A)-(E), (b)(4)(A), (b)(5)(A), (d)(1)(A), (d)(1)(C), (d)(4)(A), and (f)(4)). Fiers does not allege that defendants violated any of subsection (c)(l)(A)’s “specifically enumerated” rights. Rather, Fiers alleges violations of Bendel’s right to a certain quality of life and dignity (section (b)(1)(A)) and right to the highest practicable physical, mental, and psychosocial well-being (sections (b)(2), (b)(4)(A), (d)(1)(A), (d)(1)(C)). Other alleged violations refer to facility requirements that are not phrased as residents’ rights, including staffing, training, and administrative requirements (sections (b)(5)(A), (d)(1)(A), (d)(1)(C), and (f)(4)). Even if subsection (c)(1) did contain sufficiently clear rights-creating language, Fiers does not allege violations of these particular sections.
Again, the court compares the Seventh Circuit’s holdings in Bontrager and Planned Parenthood, supra, to this case. In both of those cases, the Seventh Circuit identified that the statutory provisions at issue unambiguously required the state make assistance available to all eligible individuals or unambiguously conferred the right to freely choose one’s provider. The statutes did not refer to generalized, vague, amorphous quality-of-life interests. The rights were clear, unambiguous, and easily subject to judicial enforcement.
Notably, the Seventh Circuit has held that a statutory provision more analogous to the FNHRA’s general “quality of life” protections was insufficiently clear to confer a federal right. In Bruggeman ex rel. Bruggeman v. Blagojevich,
Because Fiers attempts to enforce vague, amorphous, quality-of-life interests, the second Blessing factor also weighs in favor of defendants. The court concludes that Congress did not intend the FHNRA to confer federal rights.
The court’s conclusion is supported by two well-reasoned district court decisions in this circuit. In Schwerdtfeger v. Alden Long Grove Rehabilitation and Health Care Center, Inc., the Northern District of Illinois held that the FNHRA does not contain sufficiently explicit rights-creating language. No. 13-cv-8316,
The Southern District of Indiana has also held that the FNHRA does not create federal rights enforceable under section 1983. In Terry v. Health and Hospital Corporation of Marion County, the plaintiff alleged that the defendants (affiliated with a nursing facility acting under color of law) failed to create an environment that allowed the plaintiff to attain or maintain the “highest practicable physical, mental, and psychological well-being.” Order on Defendants’ Motion for Summary Judgment at 14, No. lO-cv-607 (S.D.Ind. Mar. 29, 2012), ECF No. 80. The Terry court determined that in both Blessing and Gon-zaga, the Supreme Court easily distinguished the statutory provisions at issue from those that unmistakably focus on the benefited class, such as Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. Id. at 15-16.
Fiers relies on a Third Circuit case which held that the FNHRA does confer federal rights. In Grammer v. John J. Kane Regional Centers-Glen Hazel, the Third Circuit held that the FNHRA is
The court concludes that the FNHRA does not confer federal rights and, accordingly, cannot support a cause of action under section 1983. The court will grant defendants’ motion to dismiss Count I of Fiers’s Amended Complaint.
B. The court declines to exercise supplemental jurisdiction over Counts II-IV.
The court declines to exercise supplemental jurisdiction over Fiers’s remaining state-law claims (Counts II-IV). Under 28 U.S.C. § 1367(c)(3), district courts may decline to exercise supplemental jurisdiction over a claim if “the district court has dismissed all claims over which it has original jurisdiction.” District courts exercise their discretion when determining whether to exercise supplemental jurisdiction. City of Chi. v. Int’l Coll. of Surgeons,
ORDER
IT IS ORDERED that:
1. Defendants’ motion to dismiss, Dkt. 21, is granted, and the court dismisses Counts I — IV;
2. Defendants’ motion to strike materials outside the pleadings, Dkt. 32, is denied as moot; and
3. The clerk of court is directed to enter judgment for defendants and close this case.
Notes
. 42 U.S.C. § 1983 provides,
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 redressf.]
. Congress passed the FNHRA, and the larger Medicaid Act of which the FNHRA is a part, pursuant to the Spending Clause. Schwerdtfeger v. Alden Long Grove Rehab. and Health Care Ctr., Inc., No. 13-cv-8316,
. 42 U.S.C. §§ 1396r(b)(l)(A), (b)(1)(B), (b)(2)(A), (b)(3)(A)-(E), (b)(4)(A), (b)(5)(A), (d)(1)(A), (d)(1)(C), (d)(4)(A), and (f)(4).
. Fiers also pleads violations of corresponding regulations; however, "[l]anguage in a regulation may invoke a private right of action that Congress through statutory test created, but it may not create a right that Congress has not.” Alexander,