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BLACK v. BEAME

August 30, 1976

Randall BLACK et al., Plaintiffs,
v.
Abraham BEAME, Individually and as Mayor of the City of New York, et al., Defendants



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 This matter is before the Court on motions to dismiss the suit for lack of subject matter jurisdiction, lack of standing to sue, insufficiency of the claims and absence of an indispensable party (the plaintiffs' mother, Mrs. Black).

 This is a civil rights action for declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202 seeking to protect and redress rights guaranteed by the First, Ninth and Fourteenth Amendments of the United States Constitution, Titles IV and XX of the Federal Social Security Act, 42 U.S.C. §§ 601 et seq., 1397 et seq., and New York State Law.

 Jurisdiction of the action is posited under 28 U.S.C. §§ 1343(3) and (4) and § 1331 and under the doctrine of pendent jurisdiction.

 The defendants, public officials and child care agency representatives, are charged herein with allegedly failing to provide the nine infant plaintiffs with public and private aid sufficient to keep their family intact; with allegedly failing to provide them with an apartment sufficiently large to accommodate the whole family; and allegedly failing to supply their mother with sufficient counselling services.

 Plaintiffs are nine infant children of Mrs. Frances Black; they range from four to fifteen years of age. The action is brought on behalf of the nine by "their attorneys and next friends," Marcia Robinson Lowry and Peter Bienstock. *fn1"

 The Complaint

 The plaintiffs allege as their complaint, the following:

 Mrs. Frances Black is 38 years old and receives Aid to Families with Dependent Children both for herself and to support her children (para. 28). She has 15 children, only nine of whom are accounted for in the complaint. Four of the nine reside at the Mission of the Immaculate Virgin in Staten Island, a large child care institution, and the remaining five reside with their mother. The four who reside at the Mission have not been provided with the services necessary to leave that institution and be reunited with their mother, sisters and brothers (para. 32). They were voluntarily placed in foster care by their mother in January 1971 (para. 42). Welfare benefits and services have been denied and delayed to the nine children and their mother and she has been humiliated and intimidated in attempts to secure adequate public assistance and housing for the nine (para. 33). The right of the nine to continuous care of their mother in a stable home environment has been placed in jeopardy or denied (para. 34). Mrs. Black and her children have for some time past had and still have inadequate housing for the family; presently that consists of a four bedroom apartment furnished by the New York City Housing Department in the public housing project at 870 Columbus Avenue, New York City (para. 35-40). The four at the Mission have asked, fruitlessly, to be reunited with the rest of their family (para. 45). The mother terminated her gainful employment in March 1975 (para. 51) and at a visit to her home by a Social Services caseworker in October 1975 she was threatened with removal of the remaining five children and their placement in foster care (para. 52), which placement the five at home do not want (para. 52, 53).

 The complaint contends that the public officials and welfare and child care agencies owe the Blacks a statutory and constitutional responsibility to supply the children "with services which would enable them to remain together, if at all possible" (para. 55).

 The Prior Proceedings

 Shortly after the filing of the complaint, plaintiffs sought a preliminary injunction to prevent the defendants from taking any steps to institutionalize the five plaintiffs who currently reside with their mother. An injunction was denied, the opinion stating, in part:

 
[in the present case there has not been a termination] or reduction of benefits. Moreover, not only may it be serious[ly] questioned whether the complaint presents facts raising a substantial federal question, but it may be that neither welfare nor housing nor the alleged freedom from harassment and intimidation is a constitutional right; for that matter, continuous care by a mother is not necessarily an unqualified privilege.

 The Motions -- Procedural Matters

 The City Housing Authority, with other defendants joining it, questions whether the issues presented are ripe for decision and whether the children have standing to raise them. They argue that Mrs. Black has not properly requested that the four children she delivered for foster care be returned home or properly requested that she be given a larger apartment or better services. They contend, for example, that she has not provided the Housing Authority with an accurate count of the number of members of her family. Furthermore, those defendants say that the Authority has a contractual relationship only with Mrs. Black and not with her litigating offspring or their next friends. Consequently, Mrs. Black is an indispensable party and without her as a party the suit must be dismissed, according to defendants.

 It is settled law that unless a matter has reached the stage of actual controversy a federal court will not adjudicate a suggested constitutional question therein. United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947). This ripeness doctrine not only imposes bounds on the Court's consideration of constitutional issues, but also provides the courts with an upper limit on the exercise of their discretion in the consideration of applications for injunctive and declaratory relief; Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). The purpose of requiring that disagreements ripen to controversy before being heard by the courts is

 
to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete ...

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