Carl Louis Robinson v. Fair Acres Geriatric Center

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3341
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CARL LOUIS ROBINSON,
as Executor of the Estate of Georgia Anne Hope,
Appellant
v.
FAIR ACRES GERIATRIC CENTER
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-15-cv-06749)
District Judge: Honorable Eduardo C. Robreno
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 4, 2017
Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges
(Filed: February 14, 2018)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
In this case, the late Georgia Anne Hope alleged that she suffered profound
neglect during her time at Fair Acres Geriatric Center, a nursing home owned by
Delaware County. Hope brought a claim under 42 U.S.C. § 1983, alleging Fair Acres
provided deficient care in violation of her federal statutory rights. While the suit was
pending, Hope died, but her lawyer never informed the trial court. The trial judge
subsequently dismissed the suit with prejudice for failure to state a claim, and denied as
moot the Petition to Amend Complaint and Caption to add additional defendants. Hope’s
Estate appeals. 1 Because Hope adequately pleaded a § 1983 claim under a failure-to-train
theory of liability, we will vacate and remand.
I.
Fair Acres Geriatric Center is a skilled nursing facility located in Lima,
Pennsylvania, and owned and operated by Delaware County. Georgia Anne Hope—90
years old at the time—was admitted to Fair Acres in January 2014 and stayed through
November of the same year. Hope alleged Fair Acres and its employees failed to provide
her with adequate care and treatment, contending they failed to recognize that her
condition was declining and that she had anemia, and that they failed to assist her when
she began experiencing pain, swelling, and redness. Hope alleged that as a result she
suffered infections, gangrene, dehydration, and a lower extremity sacral wound,
eventually leading to the amputation of her right leg above the knee.
Hope filed suit against Fair Acres in the United States District Court for the
1
In October 2016, we substituted Carl Louis Robinson, the executor of Hope’s Estate, as
Plaintiff–Appellant.
2
Eastern District of Pennsylvania in December 2015. Following dismissal of her initial
Complaint, Hope filed an Amended Complaint in April 2016. In the Amended
Complaint, Hope brought a § 1983 claim for violation of her federally protected rights,
along with three additional causes of action against additional individual defendants
Hope sought to join. Because Hope had not sought leave to add additional Defendants,
she then separately filed a Petition to Amend Complaint and Caption to add additional
defendants. Fair Acres filed a Motion to Dismiss, which the trial court granted in July
2016. Further, because the trial court dismissed Hope’s claims with prejudice, it denied as
moot the Petition to Amend Complaint and Caption. Hope’s Estate appeals.
II. 2
Section 1983 serves as “a vehicle for imposing liability against anyone who, under
color of state law, deprives a person of rights, privileges, or immunities secured by the
Constitution and laws.” Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520,
525 (3d Cir. 2009) (internal quotation marks omitted). In order to state a claim, a plaintiff
must first allege action under the color of state law and a violation of a federally
protected right. Hope alleged both. Because it is owned and operated by Delaware
County, Fair Acres’s actions in connection with Hope’s treatment were under the color of
state law. Further, in Grammer, we held that provisions of the Federal Nursing Home
2
The trial court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28
U.S.C. § 1291. Our review over the trial court’s grant of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) is plenary. See McGovern v. City of
Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). We review the trial court’s denial of
leave to amend the complaint to join additional parties for abuse of discretion. See In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
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Reform Amendments (FNHRA) “confer individual rights that are presumptively
enforceable through § 1983.” Id. at 532. Hope alleged Fair Acres’s employees violated
FNHRA and its implementing regulations by, inter alia, failing to provide sufficient staff
to meet Hope’s care needs; failing to prevent or document and treat Hope’s pressure
sores; failing to develop policies and procedures to avoid the harm suffered by Hope; and
permitting licensed practical nurses to perform tasks that the applicable statutes and
regulations require registered nurses or physicians to complete. These factual allegations,
taken in the light most favorable to Hope, suffice to allege a violation of her federally
protected rights under FNHRA.
But there remains another hurdle for Hope. Under § 1983, Hope must allege more
than a violation of her rights by Fair Acres’s employees. She must sufficiently plead that
the alleged violations are attributable to Fair Acres itself. “[A] municipality cannot be
held liable solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of
Social Servs., 436 U.S. 658, 691 (1978). For Fair Acres to be held liable under § 1983,
the alleged violation of Hope’s rights must have been caused by action taken pursuant to
a municipal policy or custom. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,
583–84 (3d Cir. 2003). “Customs,” when referred to in the context of § 1983 actions,
include only “practices of state officials . . . so permanent and well settled as to constitute
a ‘custom or usage’ with the force of law.” Monell, 436 U.S. at 691.
“There are three situations where acts of a government employee may be deemed
to be the result of a policy or custom of the governmental entity for whom the employee
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works, thereby rendering the entity liable under § 1983.” Natale, 318 F.3d at 584. First,
an employee’s action can be said to result from a policy or custom “where the appropriate
officer or entity promulgates a generally applicable statement of policy and the
subsequent act complained of is simply an implementation of that policy.” Id. (internal
quotation marks omitted). Alternatively, a challenged action can be considered the result
of a policy or custom “where no rule has been announced as policy but federal law has
been violated by an act of the policymaker itself.” Id. (internal quotation marks omitted).
Finally, we treat actions as being the result of policy or custom
where the policymaker has failed to act affirmatively at all, [though] the
need to take some action to control the agents of the government is so
obvious, and the inadequacy of existing practice so likely to result in the
violation of constitutional rights, that the policymaker can reasonably be
said to have been deliberately indifferent to the need.
Id. (internal quotation marks omitted) (alteration in original).
In this case, the first two theories of Monell liability do not suffice. Beyond
conclusory references to a “policy and/or custom of deprivation” at Fair Acres, Hope
failed to identify any affirmative Fair Acres policy that led to her alleged neglect and
injury. On the contrary, the focus of the Amended Complaint was, as Hope alleged, “the
continuing failure to establish, implement and/or enforce appropriate corporate safety,
training, staffing and fundamental nursing care and other policies to prevent harm to
residents.” A189-190. Accordingly, Hope failed to plead that the violation of her rights
was attributable to the implementation of “a generally applicable statement of policy” by
Fair Acres employees.
Nor did Hope allege that her injuries were caused by affirmative actions on the
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part of a particular policymaker. In the Amended Complaint, Hope identified
Administrator William D’Amico and Medical Director James Bonner, M.D., as relevant
policymakers, but did not contend that either of these individuals took affirmative action
that caused her injuries. Rather, Hope alleged the nursing staff failed to adequately
monitor, document, and treat her condition. Hope did not plead that any of these
employees were policymakers such that their actions could be fairly treated as Fair
Acres’s policy or custom.
Hope’s claim thus hinges on the third theory of Monell liability—that Fair Acres’s
policymakers were deliberately indifferent to the inadequacy of its nursing practices,
which were likely to result in the violation of patients’ rights. Hope alleged Fair Acres
“failed and refused to hire a sufficient number of trained and competent staff members, or
to properly train and/or supervise them, in order to prevent [Hope’s] injuries and or [sic]
accidents.” A193. As evidence of the deficiency of Fair Acres’s existing practices and
deliberate indifference on the part of Fair Acres’s administrators, Hope alleged Fair
Acres provided less registered nursing staff than other facilities in Pennsylvania and was
cited with numerous patient care deficiencies.
With respect to her first contention—that Fair Acres failed to hire a sufficient
number of staff—Hope failed to sufficiently allege a link between Fair Acres’s hiring
practices and the injuries she sustained. Hope failed to cite any cases in which Monell
liability was assessed based on a municipality’s failure to hire a sufficient number of
staff. Under limited circumstances, courts have recognized claims for Monell liability
based on a municipality’s hiring decisions—in particular “where adequate scrutiny of an
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applicant’s background would lead a reasonable policymaker to conclude that the plainly
obvious consequence of the decision to hire the applicant would be the deprivation of a
third party’s federally protected right[s].” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown,
520 U.S. 397, 411 (3d Cir. 1997). But Hope did not allege that any particular staff
member’s background was so obviously inadequate as to put Fair Acres’s administrators
on notice of the likelihood that patient injury would result. Instead, she alleged that
collectively the hiring was inadequate, without ever pleading how the staff members were
insufficient in numbers or quality or how that would have been clear to Fair Acres’s
administrators. Hope’s reference in the Amended Complaint to the amount of registered
nursing hours provided relative to other facilities in Pennsylvania and nationwide does
not fill the gap. The inference the Estate asks us to draw from these numbers—that
because Fair Acres provided fewer registered nursing hours than some, but not all, other
facilities, violation of patients’ rights was “the plainly obvious consequence,” id.—
requires too great a leap.
Nor did Hope adequately plead how a lack of nursing staff—or even registered
nursing staff—caused her injuries. Hope alleged that her care was inadequate; she did not
allege that staff members were not available or were present too infrequently, for
example. And none of the allegations regarding the deficient care she was provided
distinguishes between care from registered nursing staff and care from licensed practical
nurses or other staff. Accordingly, Hope’s contentions regarding Fair Acres’s deliberate
indifference in connection with its hiring practices fail to support a claim for Monell
liability.
7
Hope did, however, plead adequate facts to support her contention that Fair Acres
demonstrated deliberate indifference through its failure to properly train and supervise its
staff. In order for a failure-to-train claim to support Monell liability, a plaintiff must show
“that in light of the duties assigned to [the relevant employees,] the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the [municipality] can reasonably be said to
have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378,
390 (1989). This requires a showing of the policymakers’ “continued adherence to an
approach that they know or should know has failed to prevent tortious conduct by
employees.” Bryan Cty., 520 U.S. at 407. Additionally, “for liability to attach in this
circumstance the identified deficiency in a [municipal]ity’s training program must be
closely related to the ultimate injury.” Canton, 489 U.S. at 391.
Hope’s allegations are sufficient to meet these standards. Although Hope alleged
only generally that training was inadequate, the inadequacy of training can plausibly be
inferred from Hope’s allegations regarding the number and character of deficiency
citations issued to Fair Acres by federal and state regulators. Hope alleged that “[i]n
2014, Fair Acres Nursing Home was cited with 30 deficiencies in its patient care[, which]
put the facility in the 97th percentile for number of deficiencies.” A185. Hope further
alleged that these deficiencies related to, inter alia, Fair Acres’s “failure to provide
adequate nursing services to its residents, failure of the nursing home staff to follow
resident care policies and failure to maintain infection control on the premises from April
30, 2012 through 2014, which failures resulted in harm to its residents including Georgia
8
A. Hope.” Id. These factual allegations, considered in the light most favorable to Hope,
give rise to the plausible inference that Fair Acres administrators knew their training
“failed to prevent tortious conduct by employees.” Bryan Cty., 520 U.S. at 407. And
because Hope’s injuries involved infection, gangrene, and the loss of her right leg, “the
identified deficiency in [the] training program”—here, inter alia, failure to maintain
infection control during the relevant time period—is “closely related to the ultimate
injury.” Canton, 489 U.S. at 391. Accordingly, Hope has sufficiently pleaded a § 1983
claim under a failure-to-train theory of liability.
Because we will vacate the trial court’s dismissal of all claims against Fair Acres,
we will necessarily vacate the court’s denial of Hope’s Petition to join additional
defendants as moot.
III.
For the foregoing reasons, we will vacate and remand the July 25, 2016, Order of
the trial court dismissing the Amended Complaint with prejudice and denying the Petition
to Amend Complaint and Caption as moot.
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