Failure to State Claim.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: Gorgi Talevski, et al., v. Health and Hospital Corporation of Marion County, et al.,

Case No.: 20-1664

Officials: KANNE, WOOD, and SCUDDER, Circuit Judges.

Focus: Failure to State Claim

For Gorgi Talevski, living with dementia went from difficult to worse during his stay at Valparaiso Care and Rehabilitation, a state-run nursing facility near his family home in Indiana. Through his wife, Ivanka Talevski, he sued Valparaiso Care, the Health and Hospital Corporation of Marion County (HHC), and American Senior Communities, LLC (ASC) under 42 U.S.C. 1983 for violations of the Federal Nursing Home Reform Act (FNHRA), see 42 U.S.C. 1396r et seq. (We refer to the defendants collectively as Valparaiso Care unless the context requires otherwise.) The district court dismissed the action for failure to state a claim on which relief can be granted, based on its finding that FNHRA does not provide a private right of action that may be redressed under 42 U.S.C. 1983.

This is a difficult area of law, no doubt, and we appreciate the careful attention that both this district court and several others within our circuit have given to this issue. See Terry v. Health & Hospital Corporation, 2012 U.S. Dist. LEXIS 43702 (S.D. Ind. Mar. 29, 2012); Schwerdtfeger v. Alden Long Grove Rehab. & Health Care Ctr., Inc., No. 13 C 8316, 2014 WL 1884471 (N.D. Ill. May 12, 2014); Fiers v. La Crosse County, 132 F. Supp. 3d 1111 (W.D. Wis. 2015). We conclude, however, in keeping with the views of two of our sister circuits...