Opinion

Giebell v. Heartland Dublin Nursing Facility

Court
District Court, S.D. Ohio
Filed
Oct 27, 2020
Cited by
0 cases
Authority
More cited than 28.2%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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