The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JACQUELINE GIEBELL,
Plaintiff, : Case No. 2:20-cv-3655
-vs- Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
HEARTLAND DUBLIN NURSING
FACILITY
:
Defendant.
OPINION AND ORDER
This matter is before the Court upon Defendant Heartland Dublin Nursing
Facility’s Motion to Dismiss the Complaint (ECF No. 5) and Plaintiff Jacqueline
Giebell’s Memorandum in Opposition (ECF No. 7). For the reasons that follow, the
Court GRANTS Defendant’s Motion.
I. FACTUAL ALLEGATIONS
The following are the factual allegations the Court is able to discern from the
Complaint.
Jacqueline Giebell, a resident of Virginia, is the former caregiver and friend
of Shiskin Wu.1 (Compl., p. 5, ECF No. 1.) Ms. Giebell alleges that while she was
taking care of Mr. Wu in Virginia, she reported to her boss Jen Wu that there were
“marks” on Mr. Wu. (Id.) Approximately five weeks later, Mr. Wu was moved to
1 Ms. Giebell refers to multiple people with the surname “Wu.” To limit
confusion, hereafter the Court will refer to Shiskin Wu as “Mr. Wu” and reference
his family members by their full names.
Defendant Heartland Dublin Nursing Facility/HCR Manor Care (“Heartland), an
Ohio corporation with its principal place of business in Ohio. (Motion, 3, ECF No. 5.)
According to Ms. Giebell, when she visited Mr. Wu in January 2018, she
observed marks on him that were identical to the marks she observed in Virginia.
(Compl., p. 5.) She did not report the marks to anyone at that time but observed
additional marks on Mr. Wu during her visits in May, July, and August. (Id.)
Ms. Giebell alleges that on June 15, 2018, Mr. Wu’s power of attorney, Keui
Wu, attempted to prevent Ms. Giebell from continuing to visit Mr. Wu, but
Heartland intervened. (Id.) At the same time, Ms. Giebell reported her “observation
of abuse” to a Heartland administrator, Cody Brown. (Id.) Ms. Giebell believes that
Mr. Wu was being abused by a family member. (Id.) Ms. Giebell continued to file
complaints of abuse of Mr. Wu with Heartland, including with Mr. Brown’s
supervisor, Jason Holefelder, and the Ohio Department of Health. (Id.) According to
Ms. Giebell, Mr. Holefelder performed an evaluation of Mr. Wu and determined the
marks to be “skin discolorations.” (Id.) Ms. Giebell disagrees with this assessment.
(Id.)
On August 2, 2018, Ms. Giebell called the Dublin Police Department after
being unable to reach Mr. Wu while his family was visiting. (Id.) During that call,
Ms. Giebell discovered that “there was another report involving [Mr. Wu].” (Id.) Ms.
Giebell requested that “Sgt. Krayer”2 reopen the case but he instead suggested that
2 Ms. Giebell refers only to the title and last name of the police officers she
references in the Complaint.
Mr. Giebell document the abuse in Virginia and make a report in that jurisdiction.
(Id. at 6.) Ms. Giebell attempted to do so but was denied. (Id.) Nevertheless, Sgt.
Krayer allowed Ms. Giebell to document the abuse in Virginia. (Id.)
On August 6, “Officer Jones” was sent out to photograph the complained of
marks on Mr. Wu. (Id.) As a result, Keui Wu made a “telecommunications
complaint” to the Dublin Police. (Id.) “Officer Traves” then warned Ms. Giebell not
to contact Mr. Wu or she would be charged with harassment. (Id.) He also informed
her that Mr. Wu’s family had taken his cellphone. (Id.) Ms. Giebell then proceeded
to file an incident report about her conversation with Officer Traves. (Id.) She also
talked to “Sgt. Rice” who was “very hateful and threatened” her. (Id.)
Mr. Holefelder allowed Ms. Giebell to visit Mr. Wu on August 18. (Id. at 7.)
Ms. Giebell told Mr. Holefelder that the police had restricted her telephone access to
Mr. Wu. (Id.) She alleges that eventually the Dublin Police dismissed the warning
of Officer Traves because “the legal dept. of the police had sided with [her and]
because [Mr. Wu] was competent.” (Id.)
On August 22, Mr. Wu fell and was taken to the hospital. (Id.) Mr. Wu was
then “mysteriously put back on hospice on sept. 2nd, even though he had handled
being on hospice fine from 8/5 until he fell, he somehow started dying the next day
on 9/3, and continued dying until close to midnight on 9/4.” (Id.) Ms. Giebell believes
that Mr. Wu was signed into hospice as “retaliation and to ‘dispose’ of him. And to
rid themselves of the abuse scandal.” (Id. at 8.) She also alleges that it was
Heartland’s intention to declare Mr. Wu incompetent even though he was
competent. (Id.)
On July 20, 2020, Plaintiff filed a pro se Complaint alleging negligence per
se, gross negligence, malice, obstruction of criminal investigations, and retaliation
against a witness. She requests $200,000 in punitive damages and that “a case be
reopened on Mr. Shiskin Wu.” (Id. at 10.) The Court has diversity subject matter
jurisdiction to hear this case pursuant to 28 U.S.C. § 1332.
On August 19, 2020, Heartland filed a motion to dismiss for failure to state a
claim upon which relief may be granted. (ECF No. 5.) Ms. Giebell responded on
August 31. (ECF No. 7.) This matter is now ripe for review.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim
with sufficient specificity to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a)
standard may be dismissed if it fails to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the plaintiff
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.
Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations
omitted). The complaint need not contain detailed factual allegations, but it must
include more than labels, conclusions, and formulaic recitations of the elements of a
cause of action. Directv, Inc. v. Treesh, 487 F.3d, 471, 476 (6th Cir. 2007).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555).
These standards apply equally when the plaintiff is pro se. Although a pro se
litigant is entitled to a liberal construction of her pleadings and filings, she still
must do more than assert bare legal conclusions, and the “complaint must contain
either direct or inferential allegations respecting all the material elements to
sustain a recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712,
716 (6th Cir. 2005).
III. ANALYSIS
A. Tort Claims
Ms. Giebell alleges state law claims for negligence per se based on
Heartland’s alleged violation of the Federal Nursing Home Reform Act, 42 U.S.C. §
1395i-3, gross negligence, and malice. The injury she complains of is the alleged
abuse and subsequent death of Mr. Wu. It is apparent in both her Complaint and
Memorandum in Opposition that she is bringing these claims in her own name but
attempting to represent Mr. Wu’s interests. (Compl., p. 5; Memo. Opp., 14, ECF No.
7.) She believes that her “sponsor status” allows her to act on his behalf. She is
wrong.
“Article III of the Constitution limits federal courts’ jurisdiction to certain
‘Cases’ and ‘Controversies.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).
“One element of the case-or-controversy requirement is that plaintiffs must
establish that they have standing to sue.” Id. (internal quotations omitted). “[W]hen
a plaintiff’s standing is brought into issue the relevant inquiry is whether,
assuming justiciability of the claim, the plaintiff has shown an injury to [herself]
that is likely to be redressed by a favorable decision.” Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 38 (1976). “Absent such a showing, exercise of its power by
a federal court would be gratuitous and thus inconsistent with the Art. III
limitation.” Id. Here, Ms. Giebell does not allege any injury to herself, she
complains only of injury to Mr. Wu.
While 28 U.S.C. § 1654 “permit[s] individual parties to plead and conduct
their own cases personally or by counsel, [it] does not authorize a non-attorney to
bring suit on behalf of a third person.” Huntsman v. Sumner Cty. Jail, No. 3:19-cv-
1088, 2020 WL 1061886, at *2 (M.D. Tenn. Mar. 5, 2020) (internal quotations
omitted). Section 1654 “does not permit plaintiffs to appear pro se where interests
other than their own are at stake.” Shepherd v. Wellman, 313 F.3d 963, 970 (6th
Cir. 2002) (emphasis omitted). Pro se plaintiffs typically do not have standing to
advance pro se claims on behalf of family members, let alone a friend or professional
client. Id. Additionally, the definition of “sponsor” under Ohio Rev. Code. 3721.10(D)
does not confer standing on a pro se litigant to bring tort claims on another’s behalf.
Accordingly, Ms. Giebell lacks standing to bring these state law claims and
they must be DISMISSED.
B. Criminal Violations
Ms. Giebell also alleges violations of federal criminal statutes 18 U.S.C. §
1510 (obstruction of criminal investigations) and 18 U.S.C. § 1513 (retaliating
against a witness, victim, or an informant) based on her own interactions with
Heartland. Ms. Giebell possesses no private right of action against Heartland for
alleged violations of federal criminal statutes. Kafele v. Frank & Wooldridge Co.,
108 F’Appx 307, 308 (6th Cir. 2004). Further, as a private citizen, Ms. Giebell lacks
authority to initiate a federal criminal prosecution of Heartland for its alleged
unlawful acts. Id. at 308–09. These claims also fail and must be DISMISSED.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion is GRANTED. (ECF No. 5.)
As demonstrated by the Court’s discussion above, allowing Plaintiff leave to amend
her claims or refile her Complaint would be futile. SFS Check, LLC v. First Bank of
Delaware, 774 F.3d 351, 355 (6th Cir. 2014). Accordingly, the Complaint is
DISMISSED with prejudice. (ECF No. 1.)
The Clerk is DIRECTED to TERMINATE this case from the docket of the
United States District Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE