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January 3, 1977

William PATTON by his next friend Dr. Hylan Lewis, Plaintiff,
James DUMPSON et al., Defendants

The opinion of the court was delivered by: OWEN


 OWEN, District Judge.

 This motion is one addressed to the sufficiency of the complaint. The complaint alleges as follows: that plaintiff William Patton is a ten year old mentally retarded black child. In 1969, at age three, he was abandoned by his mother, having been abused and neglected by her. He had scars upon his body, was non-verbal and was not toilet trained. Under appropriate provisions of the New York Social Services Law, William came into the care of officials of the City of New York with the responsibility for abandoned children. *fn1" These City officials, in turn, placed William with the Children's Aid Society, which placed him as a boarder with the New York Foundling Hospital, which operates a shelter for children. *fn2"

 When William entered the Foundling Hospital at age three, he showed signs of mental retardation which, it is alleged, were apparent to the staff at the Foundling Hospital. It is further alleged that the Foundling Hospital did not test William for the existence of metabolic disorders until almost two years later, notwithstanding alleged medical practice that children showing such signs be tested immediately.

 The tests when administered showed William to have homocystinuria, an inherited metabolic disorder which causes continuing physical damage unless diagnosed and properly treated. Upon learning of his condition, the Children's Aid Society placed William in a foster home supervised by their agency with a direction to control his diet, which is an appropriate method of treatment. Two months later, the Children's Aid Society learned that William was deteriorating and that his foster mother did not wish to keep him. However, it is alleged that Children's Aid Society left William in that foster home for some four months until in August of 1973, he was admitted to Bellevue Hospital, in poor condition. At Bellevue, apparently his condition was bettered within a month and he was returned to the same foster home. However, two months later, his diet not being followed, the Children's Aid Society placed William in a second foster home, apparently only licensed to care for children under the age of three. William was at that time seven years old. Some two months later, William had to be readmitted to Bellevue, again in poor physical condition, and was apparently again restored to health within a month. However, for approximately the following two years, William was left in Bellevue Hospital as a resident in the Pediatric Metabolic Unit, being classified as a "boarder baby." *fn3" and he usually was the only "in patient." The complaint does not specify the number of "out patients." It is alleged that William spent most of his waking hours under the supervision of a nurse who, it is claimed, "usually does not allow him to have toys and it is alleged he received virtually no attention and no supervised training or remediation."

 Subsequent to the filing of this complaint, William was adopted, having been placed by a new placement agency, the L. C. Spaulding for Children. Spaulding specializes in placing "unadoptable" children and had taken over his case during the summer of 1975. (New York Times, Saturday, December 13, 1975 at 23, col. 4). *fn4"

 This action, commenced in William's name by "his next friend," Dr. Hylan Lewis, a professor of sociology at Brooklyn College, alleges facts which, if true, tell a tragic tale of child neglect and abuse by a mother, negligent medical management by those charged with responsibility in the premises, and improper placement and neglect of this young boy's education from his eighth to tenth years.

 The complaint alleges various constitutional bases for federal jurisdiction. There is concededly no diversity of citizenship. Unless the plaintiff can support one or more constitutional grounds for jurisdiction, this action, assuming the evidence supports the allegations, is essentially one sounding in tort, medical malpractice and possibly breach of a third party beneficiary contract, and is only properly cognizable in the courts of the State of New York.

 Plaintiff's main thrust is that William has been denied his constitutional right to treatment, guaranteed by the Fourteenth Amendment, principal reliance being placed upon Martarella v. Kelley, 349 F. Supp. 575 (S.D.N.Y.1972).

 Assuming, without deciding, that all the defendants are chargeable with having acted under color of state law, and assuming further, without deciding, that there is a constitutional right to treatment which would include all the various kinds of wrongs to William that plaintiff claims, but see O'Connor v. Donaldson, 422 U.S. 563, 573, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1974), id. at 578-589, 95 S. Ct. 2486 (Burger, C. J., concurring); New York State Ass'n. for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752, 762 (E.D.N.Y.1973), I conclude that the failure to properly treat one single person does not allege a violation of the constitutional right to treatment. Were this the rule, every medical malpractice claim under color of state law would become a case cognizable in a United States District Court as a constitutional claim. The Court is not open for the hearing of individual negligence claims involving those in state custody or care, as a constitutional matter. The right to treatment doctrine is one that permits the Court to intervene where there is an absence or inadequacy of a program of treatment for an entire group of people who have found themselves in state custody or care. It is the absence or inadequacy of the program that permits a federal court to intervene.

This [right to treatment] requires only the establishment of a program, institution-wide in scope, for developing and formulating individual treatment plans; it of course does not require the formulation, in this suit, of each individual plan.

 Wyatt v. Aderholt, 503 F.2d 1305, 1316 (5th Cir. 1974).

 From the complaint, it is not even clear what "treatment" William was denied. While at the New York Foundling Hospital, the only "treatment" it is alleged William was denied was an early diagnosis of his homocystinuria. While in foster care, the only "treatment" it is alleged William was denied was a failure on the foster parents' part to maintain his required diet. This failure would belong, if anywhere, under William's constitutional right to be free from harm. William's two year stay at Bellevue would involve, not a violation of his "right to treatment," but a possible denial of a statutory right to an education without due process, and generally improper placement.

 The complaint in this case, viewed against the foregoing, fails to state a cause of action alleging a denial of a right to treatment of constitutional proportions, and this cause ...

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