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Ltd. v. Himes

United States District Court, S.D. Ohio, Western Division

August 23, 2019

54 REALITY, LTD, et al., Plaintiffs,
v.
LANCE HIMES, et al., Defendants.

          Dlott, J.

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE

         This civil action is now before the Court on Defendants' motion to dismiss (Doc. 23) and the parties' responsive memoranda. (Docs. 26, 29). Also, before the Court is Defendants' motion to transfer venue. (Doc. 19). The motions will be addressed in turn.

         I. Background and Facts

         The Plaintiffs bring this civil-rights lawsuit pursuant to 42 U.S.C. §§ 1983, 1985(3), and 1986, and for violations of rights, privileges, or immunities secured by the Fourteenth Amendment to the U.S. Constitution and the Declaratory Judgments Act, 28 U.S.C. § 2201. The Plaintiffs seek compensatory damages, and injunctive and declaratory relief against the enforcement of Ohio's certificate of need requirements with respect to improvements to nursing homes and the acquisition of beds, and the policies and practices of the Ohio Department of Health and the Ohio Department of Aging, and the directors of those agencies, the other Defendants named in this complaint, as well as the John and Jane Doe Defendants who have conspired with these directors to effect the violations described herein.

         A. The Parties

         There are twenty-four Plaintiffs listed in the Amended Complaint, all of whom either own or operate nursing facilities in Ohio. Plaintiff's are identified as follows:

         Harold Sosna, 72 Ventures Ltd., 54 Reality, Ltd., Avery Road Reality, LLC, Ivy Health Realty, LLC, Seminole Avenue Realty, LLC, Keller Road Realty Co., LLC, Steigler Road Realty, LLC, Clermont Health Realty, LLC, JZB Realty Holding Co. LLC, Pleasant Ridge Reality, LLC, F&H Realty Holding Company LLC, and Shining Knight Reality LLC, Avery Road Care Center, Inc., Euclid Health Care, Inc. d/b/a Madeira Health Center, Pleasant Ridge Care Center, Inc., Kenwood Terrace Care Center, Inc., Southbrook Health Care Center, Inc., Beechwood Terrace Care Center, Inc., Ivy Health Care, Inc., Social Row Transitional Care, Inc., Wexford Care Center, Inc., Wexford Place, Inc., and Amelia Care Center.

         Plaintiff Harold Sosna is an Ohio licensed Nursing Home Administrator, and has for many years engaged in the business of acquiring, owning, operating, building, and improving long term care facilities/nursing homes and other activities related to the delivery of care and services to Ohio's elderly and medically needy citizens in long term care facilities.

         Mr. Sosna owns all issued and outstanding shares or member units of Avery Road Realty, Pleasant Ridge Realty, JZB Realty, F&H Realty, Ivy Health Realty, Shining Knight Realty, Clermont Health Realty, Pleasant Ridge Care Center, Inc., Beechwood Terrace Care Center, Inc., Social Row Transitional Care, Inc., Ivy Heath Care, Inc., Avery Road Care Center, Inc., Wexford Care Center, Inc., and The Wexford Place, Inc. Harold Sosna owns 50% of the issued and outstanding shares or member units of Steigler Road Realty, Keller Road Realty, Seminole Avenue Realty, 54 Realty, 72 Ventures, Euclid Health Care, Inc., Kenwood Terrace Care Center, Inc., and Southbrook Health Care Center, Inc.

         Plaintiffs assert claims against the following defendants:

         Defendant Lance Himes, Director of the Ohio Department of Health (“ODH”); Beverly L. Lauber, Director of the Ohio Department of Aging (“ODA”); Gay Lynne Gibson, Health Care Facilities Surveyor for the Ohio Department of Health; Rhoda Elisabeth Jones, Health Care Facilities Surveyor for the Ohio Department of Health; Amanda Kay Fruth, a Health Care Facilities Surveyor for the Ohio Department of Health; Tammy Lynn Lorbach, a Health Care Facilities Surveyor for the Ohio Department of Health; Sherri Sue Edler, a Health Care Facilities Surveyor for the Ohio Department of Health; Crystal Autumn Mullins, a Health Care Facilities Surveyor for the Ohio Department of Health; Lindsey Renee Pasanen, a Health Care Facilities Surveyor for the Ohio Department of Health; Teresa Lynn Raleigh is a Health Care Facilities Surveyor for the Ohio Department of Health; and Emily Bonita Hester, a Health Care Facilities Surveyor for the Ohio Department of Health.

         B. CON denial and Claims

         The Plaintiff companies all own or operate nursing homes in Ohio. (Doc. 16, Amended Complaint (“AC”) ¶¶ 7-18). All of these companies are owned in whole or part by Plaintiff Harold Sosna. (AC ¶¶ 6, 19). Mr. Sosna is an Ohio licensed Nursing Home Administrator, and his companies have been routinely recognized for excellence in delivery of health care and other ...


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