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Daniel J. Pantalone, By and v. County of Fulton and Fulton County Residential Health Care Facility

April 15, 2011


The opinion of the court was delivered by: David N. Hurd United States District Judge



Plaintiff Daniel J. Pantalone ("plaintiff" or "Pantalone") by and through his attorneys in fact, Danny J. Pantalone and Therese Howard, brings this action pursuant to 42 U.S.C. § 1983 and alleges that defendants Fulton County and the Fulton County Residential Health Care Facility (collectively "defendants") violated rights guaranteed to him under the Federal Nursing Home Reform Amendments ("FNHRA"), 42 U.S.C. § 1396r et seq. Plaintiff also brings a pendent state claim for negligence. Defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the FNHRA does not provide a federal right enforceable under § 1983.*fn1 Plaintiff opposes the motion.

Oral argument was heard on April 1, 2011, in Utica, New York. Decision was reserved.


The following facts, taken from the complaint, are accepted as true for purposes of this motion to dismiss.

Plaintiff became a resident of the Fulton County Residential Health Care Facility (the "Facility") in December 2004. On August 3, 2009, two employees of the Facility were helping plaintiff-who is wheelchair bound-into the shower by placing him on a lift. A belt intended to hold plaintiff on the lift was not properly secured, and he fell to the shower floor. Plaintiff heard a loud "pop" when he hit the floor. On a subsequent "Transfer to Acute Care Facility" form, a nurse's aide noted: "heard knee pop while giving resident shower on 8/3/09." For two days after his fall, Pantalone remained in bed and suffered from severe pain in his leg. Plaintiff was not provided with any medical treatment until August 5, 2009, when his left leg was x-rayed, and he was diagnosed with a non-displaced fracture of the left femur. During his follow-up care, an unexplained left ankle fracture was also discovered.


A. Motion to Dismiss-Legal Standard

To survive a 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009).

Dismissal is appropriate only where plaintiff fails to provide some basis for the allegations that support the elements of his claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

B. Issue and Parties' Contentions

Plaintiff claims that defendants violated the following two provisions of the FNHRA: A nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident. 42 U.S.C. § 1396r(b)(1)(A).

To the extent needed to fulfill all plans of care described [above], a nursing facility must provide (or arrange for the provision of) nursing and related services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. 42 U.S.C. § 1396r(b)(4)(A)(i).

It is undisputed that the FNHRA does not provide a private cause of action to be brought under the statute directly. However, a statute can create a right, enforceable through § 1983, by evidencing an "unambiguous" intent to confer such a right upon a class of beneficiaries. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268, 2275 (2002). While the distinction between these two avenues for judicial redress has historically caused confusion, its impact on this matter is relatively minor as the guiding factor behind both is congressional intent. As the Supreme Court has clarified:

We have recognized that whether a statutory violation may be enforced through § 1983 is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute. But the inquiries overlap in one meaningful respect-in either case we must first determine whether Congress intended to create a federal right. . . . [A] plaintiff suing under an implied right of action still must show that the statute manifests an intent to create not just a private right but also a private remedy.

Plaintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the ...

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