     Case: 17-50826      Document: 00514490313         Page: 1    Date Filed: 05/29/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 17-50826
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          May 29, 2018
                                                                           Lyle W. Cayce
JULIETTE FAIRLEY,                                                               Clerk


              Plaintiff - Appellant

v.

PM MANAGEMENT - SAN ANTONIO AL, L.L.C., doing business as
Lakeside Assisted Living by Trisun Healthcare,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:17-CV-426


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Before the court are the district court’s grants of PM Management d/b/a
Lakeside Assisted Living’s (“Lakeside”) Rules 12(b)(1), 12(b)(6) and 12(b)(7)
motions to dismiss. For the reasons below, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-50826
                                         I.
      Juliette Fairley, a resident of New York, filed this lawsuit as next of
friend and advocate of her father, James Fairley, a resident at Lakeside in San
Antonio, Texas. Juliette asserts numerous causes of action arising from the
treatment of her father at Lakeside, including her own visitation rights.
      Prior to the lawsuit, a Texas probate court appointed Sophie Fairley,
James’s wife, as the permanent guardian of James; Juliette’s application to be
appointed James’s guardian was dismissed. A Texas court of appeals affirmed
the appointment. The probate court also determined that James had limited
opportunity to visit with Juliette and that special arrangements must be made
to facilitate their visits. Personal and telephone contacts between James and
Juliette are supervised by a monitor, per court order.
      Juliette asserted federal jurisdiction on the existence of diversity and
federal questions. Lakeside argued before the district court that Sophie was an
indispensable party. Although Lakeside and Juliette are citizens of different
states, Sophie—like Lakeside—is a resident of Texas. Juliette further alleged
that the probate court orders violate federal law, and that because Lakeside
receives Medicare and Medicaid funding, it is a state actor acting under color
of law for 42 U.S.C. § 1983 claims. Juliette also alleged claims under the
Nursing Home Reform Amendments Act (“NHRA”). Finally, Juliette brought a
claim under Title II of the Civil Rights Act of 1964 for alleged discrimination
by Lakeside.
      The district court determined that Sophie was an indispensable party,
and therefore diversity failed to exist. It further determined that just because
a nursing home receives federal funding or follows state court orders, it does
not become a state actor subject to § 1983 claims. It also determined that any
NHRA claim must be made by James’s legal guardian—here, Sophie—and not
by Juliette. As to the Title II claim, the district court determined Juliette failed
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                                  No. 17-50826
to state a claim upon which relief could be granted. Accordingly, it dismissed
Juliette’s lawsuit. She timely appealed.
                                        II.
      “We review a district court’s decision to dismiss for failure to join an
indispensable party [under Rule 19] . . . under an abuse-of-discretion
standard.” HS Resources, Inc. v. Wingate, 327 F.3d 432, 438 (5th Cir. 2003)
(internal quotations omitted). “We review de novo the district court’s order on
a motion to dismiss for failure to state a claim under Rule 12(b)(6).” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
                                       III.
      The district court, having determined that Sophie was an indispensable
party, did not abuse its discretion. Juliette specifically raised issues pertaining
to the probate court’s order on visitation with James. Determining that Sophie,
as James’s legal guardian, is a necessary party because any claim pertaining
to James necessarily implicates Sophie was not an abuse of discretion. And
because Sophie and Lakeside are both residents of Texas, if Sophie were joined
as a party, the basis for diversity jurisdiction would fail.
      Moreover, as to the claims attempted under federal question jurisdiction,
the district court did not err in dismissing them for failure to state a claim.
Juliette’s claim under § 1983 is premised upon Lakeside being a state actor
because it follows an—allegedly incorrect—order of a state probate court. This
factor does not amount to Lakeside being a state actor for purposes of § 1983
claims, and the district court appropriately dismissed the claims. See Richard
v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 353 (5th Cir. 2003) (“[T]his
Court’s precedent establishes that even if a court wrongly decides a case, the
fact that a private party complies with that wrong decision does not constitute
state action.”). The district court also dismissed Juliette’s attempted NHRA
claim, which is seemingly actionable through § 1983 for Medicaid recipients.
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                                 No. 17-50826
See Steward v. Abbott, 189 F. Supp. 3d 620, 638 (W.D. Tex. 2016) (collecting
cases). Any such allowable action must be brought by the beneficiary, however.
See id. Therefore, even if Lakeside were subject to this claim, Juliette is not
the proper party to bring it. Such a claim must be brought by James’s legal
guardian, Sophie. Finally, the district court properly dismissed the Title II
claim because Lakeside is not a place of public accommodation, see 42 U.S.C. §
2000a(b), and Juliette failed to carry her burden to establish a plausible claim
of discrimination in her complaint, see Fahim v. Marriott Hotel Servs., Inc. 551
F.3d 344, 349 (5th Cir. 2008).
      AFFIRMED.




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