CONNECTICUT ASSOCIATION OF HEALTH CARE FACILITIES, INC., Plaintiff-Appellant, v. Roderick L. BREMBY, Commissioner of Social Services, Defendant-Appellee, Dannel P. Malloy, Governor, State of Connecticut, Defendant, 519 F. App'x 44

SUMMARY ORDER The Connecticut Association of Health Care Facilities, Inc. (the “Association”) appeals from the judgment of the United States District Court for the District of Connecticut (Dorsey, J.), dismissing the Association’s Taking Clause claim asserted in Count VI of its Complaint. In Count VI, the Association alleges a per se taking of its members’ property — space in nursing homes — under Connecticut’s Medicaid system.

The Association alleges that Connecticut law prohibits discharging Medicaid patients from nursing homes and impairs, delays, or burdens the ability of the nursing homes to cease operations. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v.

Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). 1. Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992), forecloses the Association’s Taking Clause claim. As in Yee, the nursing homes here voluntarily accepted nursing home patients as customers. See id. at 527, 112 S.Ct. 1522. Under Yee, a state law prohibiting the discharge or eviction of those customers is not a taking under the Fifth Amendment, especially since the nursing homes are free to discharge Medicaid patients by ceasing operations as nursing homes. See id. at 528, 112 S.Ct. 1522; see also Franklin Mem’l Hosp. v.

Harvey, 575 F.3d 121, 126 (1st Cir.2009) (“Here too, FMH is not required to serve low income patients; it may choose to stop using its property as a hospital.” (emphasis added)). 2. The Association argues that nursing homes are, in effect, prohibited from ceasing operations as nursing homes because Connecticut law requires approval of the Commissioner of Social Services before a nursing home may cease operations. See Conn. GemStat. § 17b-352(b) & (e).

The plaintiffs in Fee made an almost identical argument, which the Fee Court rejected: Petitioners suggest that the statutory procedure for changing the use of a mobile home park is in practice “a kind of gauntlet,” in that they are not in fact free to change the use of them land. Because petitioners do not claim to have run that gauntlet, however, this case provides no occasion to consider how the procedure has been applied to petitioners’ property, and we accordingly con-fíne ourselves to the face of the statute.

A different case would be presented were the statute, on its face or as applied, to compel a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy. Fee, 503 U.S. at 528, 112 S.Ct. 1522 (citations omitted). The Association’s Complaint does not allege that any of its member nursing homes have tried unsuccessfully to cease operating. Because none of the member nursing homes “have run th[e] gauntlet,” Fee controls, and the Association’s claim fails.

For the foregoing reasons, and finding, no merit in the Association’s other arguments, we hereby AFFIRM the judgment of the district court.