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CALKINS v. BLUM

March 4, 1981;

Kenneth CALKINS, Yvonne Calkins, Gerald Makin, Helen Makin, Martin E. Toomey, Sr., and Mary Toomey, individually and on behalf of their minor children residing with them, and on behalf of all other persons similarly situated, Plaintiffs, and Alexander Kliss, Jane Kliss, David Hodeker, and Connie Hodeker, individually and on behalf of all other persons similarly situated, Curtis Williams, Addie Williams, Isahiah Floyd, and Louise Floyd, individually and on behalf of their minor children residing with them, and on behalf of all other persons similarly situated, Plaintiffs-Intervenors,
v.
Barbara B. BLUM, individually and as Commissioner of the New York State Department of Social Services, John L. Lascaris, individually and as Commissioner of the Onondaga County Department of Social Services, Sarah A. Curtis, individually and as Commissioner of the Steuben County Department of Social Services, W. Burton Richardson, individually and as Commissioner of the Monroe County Department of Social Services, Jerim Klapper, individually and as Commissioner of the Orleans County Department of Social Services, and Beverly Carbb, individually and as Commissioner of the Genesee County Department of Social Services, Defendants



The opinion of the court was delivered by: MUNSON

MEMORANDUM DECISION AND ORDER

The named plaintiffs, plaintiff-intervenors, *fn1" and absent proposed class members are aged, blind, or disabled adults, their spouses, and any dependent children. All named plaintiffs have sought medical assistance (medicaid) as medically needy persons. In this action for declaratory, injunctive, and monetary relief, the plaintiffs *fn2" aver, inter alia, that the defendants, administrators of the medicaid program for the State of New York, have determined the medicaid eligibility of medically needy persons in a manner different from, and less generous than, the methods used to compute the medicaid eligibility of categorically needy persons. This disparate treatment, the plaintiffs alleged, has violated certain provisions of the Social Security Act, various regulations promulgated by the Department of Health and Human Services (HHS), *fn3" the Equal Protection Clause of the Fourteenth Amendment, the Supremacy Clause, and 42 U.S.C. § 1983.

 Presently before the Court are motions by the plaintiffs for class certifications and for summary judgment, and by the defendants for dismissal of the complaint and for cross-summary judgment.

 I.

 A.

 Title XIX of the Social Security Act of 1965, 42 U.S.C. §§ 1396-1396k, has created a cooperative federal-state medical assistance (medicaid) program designed to enable each State, "as far as practicable under the conditions of each State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals whose income and resources are insufficient to meet the costs of necessary medical services, ...." 42 U.S.C. § 1396(1). If a state chooses to participate in the medicaid program, it must submit to the Department of Health and Human Services (HHS), the administrator of the federal medicaid program, see 42 C.F.R. §§ 435.1-. 1011, a medical assistance plan that comports with the requirements of the Social Security Act and of the regulations promulgated by HHS. 42 U.S.C. §§ 1396, 1396a; 42 C.F.R. § 435.10.

 With respect to these requirements, the federal program distinguishes two groups of medicaid recipients. Pursuant to 42 U.S.C. § 1396a(a)(10)(A), a participating State must provide medical assistance to the "categorically needy," those aged, blind, or disabled individuals, and families and children, whose levels of income and resources are low enough to qualify them for federal cash assistance under the Supplementary Security Income (SSI) program, 42 U.S.C. §§ 1381-1383c, or under the Aid to Families with Dependent Children (AFDC) program, 42 U.S.C. §§ 601-644. See 42 C.F.R. § 435.4 (amended 45 Fed.Reg. 24883, April 11, 1980). Pursuant to 42 U.S.C. § 1396a(a)(10)(C), a participating State may provide medicaid benefits to the "medically needy", those aged, blind, or disabled individuals, and families and children, whose levels of income and resources are too low to cover the costs of medical care, but too high to qualify them for cash grants under the SSI or AFDC programs. See 42 C.F.R. § 435.4. This class of medically needy may thus be divided into two subgroups: the SSI medically needy, those aged, blind, or disabled individuals in need of medical assistance who are ineligible for SSI, and the AFDC medically needy, those families and children in need of medical assistance who are ineligible for AFDC.

 The State of New York is one state that participates in the cooperative medicaid program. See N.Y.Soc.Serv.Law §§ 363-369. In this regard, the State of New York also operates under a state constitutional mandate to affirmatively aid the needy. N.Y.Const. Art. XVII, § 1. See Lee v. Smith, 43 N.Y.2d 453, 373 N.E.2d 247, 402 N.Y.S.2d 351 (1977); Tucker v. Toia, 43 N.Y.2d 1, 371 N.E.2d 449, 400 N.Y.S.2d 728 (1977). Under the New York medicaid scheme, which is administered by the departments of social services of the State, counties, and of the City of New York, the State furnishes medical assistance to both the categorically and medically needy. N.Y.Soc.Serv.Law §§ 366(1)(a)(1), (2) & (5).

 Since the commencement of this action, the State of New York has converted to a different medical assistance plan, effective August 29, 1980. Under the new "209b" plan, as set forth in 42 U.S.C. § 1396a(f), *fn4" the State, instead of HHS, determines SSI eligibility, and may apply to aged, blind, or disabled individuals medicaid eligibility criteria that are more restrictive than the criteria utilized under the SSI program. See 42 C.F.R. § 435.121 (amended 45 Fed.Reg. 24883, April 11, 1980). Thus, this opinion must address two separate time frames, the pre- and post-conversion periods.

 B.

 At dispute in this action are the budgeting procedures used by the defendants in ascertaining the eligibility for and amount of, medical assistance for the medically needy.

 For purposes of clarity, the plaintiffs fall into four groups. The first group of plaintiffs is comprised of several aged, blind, or disabled, SSI medically needy persons: Kenneth Calkins, a blind resident of Onondaga County; Gerald Makin, a disabled resident of Steuben County; Mary Toomey, a disabled resident of Monroe County; Curtis and Addie Williams, disabled residents of Orleans County; Jane Kliss, a disabled resident of Monroe County; Isahiah and Louise Floyd, disabled residents of Genesee County; and Connie Hodeker, a disabled resident of Monroe County. The second group of plaintiffs represent the spouses of these aged, blind, or disabled, SSI medically needy persons, who join this action because they bear the financial responsibility for the medical and non-medical care of their medically needy spouses: Martin E. Toomey, Sr., a resident of Monroe County; Alexander Kliss, a resident of Monroe County; and David Hodeker, a resident of Monroe County. The third group of plaintiffs includes individuals who reside with SSI medically needy persons and who are AFDC medically needy by virtue of their children's deprivation of parental support, which stems from the disabilities of the parents: Yvonne Calkins, a resident of Onondaga County and a caretaker relative of two minor children; Curtis and Addie Williams, residents of Orleans County and caretaker relatives of three minor children; Isahiah and Louise Floyd, residents of Genesee County and caretaker relatives of one minor child; and Helen Makin, a resident of Steuben County and a caretaker relative of four minor children. The final group of plaintiffs consists of aged, blind, or disabled SSI medically needy persons who reside with AFDC medically needy persons, and who thus qualify as both SSI and AFDC medically needy: Kenneth Calkins, Gerald Makin, Curtis and Addie Williams, and Isahiah and Louise Floyd.

 The defendants are administrators of the New York medicaid program. The defendant Blum, Commissioner of the New York State Department of Social Services, is the chief administrator of that Department, and is responsible for exercising general supervision over all local welfare authorities, pursuant to N.Y.Soc.Serv.Law § 34. The defendants Lascaris, Commissioner of the Onondaga County Department of Social Services; Curtis, Commissioner of the Steuben County Department of Social Services; Richardson, Commissioner of the Monroe County Department of Social Services; Klapper, Commissioner of the Orleans County Department of Social Services; and Crabb, Commissioner of the Genesee County Department of Social Services, are responsible for the general operations of their respective departments, pursuant to N.Y.Soc.Serv.Law § 65.

 Those plaintiffs who are aged, blind, or disabled, SSI medically needy, and those plaintiffs who are AFDC medically needy and reside with SSI medically needy persons, sought medical assistance from their local county departments of social services. In each case, these plaintiffs were informed that because of excess income, they or their spouses would have to incur varying amounts of medical expenses before satisfying the eligibility requirements of the medicaid program. None of the aged, blind, or disabled, SSI medically needy plaintiffs had the earned income of their spouses computed according to the income disregard provisions of the SSI program. Cf : 42 U.S.C. § 1382a(b); 20 C.F.R. § 416.1112 (45 Fed.Reg. 65549, October 3, 1980). Furthermore, none of these same plaintiffs had their income computed according to the SSI budgeting scheme set forth in 42 C.F.R. § 435.721. In the cases of the AFDC medically needy plaintiffs who reside with aged, blind, or disabled, SSI medically needy spouses, none had their income determined without regard to the income of their spouses. Cf : 42 U.S.C. § 602(a)(24). Finally, the plaintiffs who are both SSI and AFDC medically needy were presented no option of having their income calculated according to the SSI budgeting methodology. Cf : 42 C.F.R. § 435.404.

 After receiving their medicaid determinations from the county departments of social services, the plaintiffs sought and secured administrative fair hearings before the New York State Department of Social Services. The decisions after fair hearing affirmed the county determinations of each plaintiff's medicaid eligibility.

 Alleging no adequate remedy at law, the plaintiffs raise two basic claims before this Court in regard to the defendants pre-August 29, 1980 practices. Firstly, the plaintiffs who are SSI or AFDC medically needy, and the spouses of such persons, contend that, among other requirements under the federal medicaid program, the defendants should have evaluated the income of SSI medically needy persons on the basis of the SSI budgeting methodology, and the income of AFDC medically needy persons on the basis of the AFDC budgeting methodology or, in short, that the defendants use comparable standards in computing the eligibility of categorically and medically needy persons. Secondly, the plaintiffs who are both SSI and AFDC medically needy maintain that, pursuant to 42 C.F.R. § 435.404, they should have been permitted to select the category under which they wish to be treated. For these allegedly unlawful practices, the named plaintiffs seek declaratory judgment relief and monetary damages in the form of restitution of the amounts wrongfully paid by them for medical care. *fn5" Responding to these arguments, the defendants argue that the federal medicaid program imposes none of the requirements urged by the plaintiffs.

 In regard to the post-conversion period, only one group of plaintiffs seeks injunctive relief in addition to declaratory judgment and monetary relief against these same allegedly unlawful practices: the plaintiffs who are AFDC medically needy and reside with SSI medically needy persons. These plaintiffs contend that under the "209b" plan their claims remain alive, and that, accordingly, they are entitled to relief. *fn6"

 Before addressing these claims, it is necessary to turn to various preliminary issues that the parties have raised.

 II.

 A.

 The plaintiffs have alleged that jurisdiction over this action lies under 28 U.S.C. § 1343, or, in the alternative, under 28 U.S.C. § 1331. Moving to dismiss the complaint for want of jurisdiction, the defendants have disputed this allegation on several grounds.

 One argument raised by the defendants is that this Court should not assume jurisdiction over this case because it "would be to accept a federal court review power over almost every ruling of the (commissioners) in the day-to-day operations of the state welfare laws ...." McCall v. Shapiro, 416 F.2d 246, 250 (2d Cir. 1969). The Second Circuit, however, made this statement in the context of finding that the federal courts lacked jurisdiction under § 1343 to hear the asserted claim. Id. Such a statement, then, by itself, hardly amounts to a ruling that this Court must decline to exercise jurisdiction in all cases that implicate day-to-day aspects of welfare administration.

 In addition, the defendants argue that pursuant to the decision of the Second Circuit in Andrews v. Maher, 525 F.2d 113, 118-19 (2d Cir. 1975), the Social Security Act confers no jurisdiction under § 1343(a)(3) or (4), *fn7" and the Supremacy Clause furnishes no jurisdictional predicate under § 1343(a)(3). The defendants have not raised a third aspect of the Andrews decision, namely, the Second Circuit's ruling that 42 U.S.C. § 1983 is not an "Act of Congress providing for the protection of civil rights", as this phrase appears in § 1343(a)(4). Id. at 119-20. In this regard, since the commencement of this action, the United States Supreme Court has substantially confirmed these positions of the Second Circuit. In Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979), the Court first addressed the issue of whether the Supremacy Clause secures rights within the meaning of § 1343(3) (now (a)(3)). Id. at 612-15, 99 S. Ct. at 1913-15. Resolving this question in the negative, the Court concluded that "an allegation of incompatability between federal and state statutes and regulations does not, in itself, give rise to a claim "secured by the Constitution' within the meaning of § 1343(3)." Id. at 615, 99 S. Ct. at 1915. Next, the Court considered the question of whether § 1983 was an Act of Congress that provided either for "equal rights" within the meaning of § 1343(3) or for the protection of "civil rights" within the meaning of § 1343(4) (now (a)(4)). Id. Reasoning that § 1983 provides no substantive rights, the Court found that this Statute cannot supply a basis for the invocation of jurisdiction under § 1343(3). Id. The Court ruled further that because § 1983, standing alone, offers no protection for civil rights, jurisdiction similarly would not lie under § 1343(4). Id. Finally, the Court held that the Social Security Act "is not a statute providing for "equal rights' " under § 1343(3), id. at 623 (citing Andrews v. Maher, supra ), or for the protection of "civil rights" under § 1343(4), id. (citing McCall v. Shapiro, supra ). See Podrazik v. Blum, 479 F. Supp. 182, 187 (N.D.N.Y.1979) (Foley, C. J.), aff'd, 622 F.2d 575 (2d Cir. 1980).

 In view of the Chapman decision, then, this Court concludes that in this action the Social Security Act and, by themselves, the Supremacy Clause and § 1983 provide no bases for jurisdiction under § 1343.

 The plaintiffs, however, have not argued that the Supremacy Clause and § 1983, by themselves, confer jurisdiction under § 1343. Instead, the plaintiffs aver additionally that this Court has jurisdiction under § 1343 to decide this action because they have asserted substantial claims under the Equal Protection Clause of the Fourteenth Amendment. In support of this contention, the plaintiffs state that at least three classifications are present in this action. Firstly, because aged, blind, or disabled, SSI medically needy persons have not received the benefit of all the disregards and exclusions which are automatically accorded to SSI recipients, these persons have retained less money for their non-medical needs than those similarly situated persons who receive SSI benefits. Secondly, AFDC medically needy families of aged, blind, or disabled, SSI medically needy persons have been disadvantaged by the failure of the defendants to regard the income of the aged, blind, or disabled person as invisible in computing the budgets of AFDC medically needy families, as has been the case where actual SSI and AFDC recipients are involved. Thirdly, the plaintiffs have been disadvantaged insofar as the defendants have failed to implement the contested portions of the federal regulations regarding medicaid eligibility. Because at least the first two classifications allege a disparity between categorically and medically needy persons with respect to the amount of income available for non-medical expenses, the plaintiffs contend that these classifications raise substantial equal protection claims that confer jurisdiction upon this Court under § 1343. Citing Greklek v. Toia, 565 F.2d 1259 (2d Cir. 1977), cert. denied sub nom. Blum v. Toomey, 436 U.S. 962, 98 S. Ct. 3081, 57 L. Ed. 2d 1128 (1978); Aitchison v. Berger, 404 F. Supp. 1137, 1142-43 (S.D.N.Y.1975), aff'd, 538 F.2d 307 (2d Cir.), cert. denied, 429 U.S. 890, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976).

 In response to these arguments, the defendants maintain that the Equal Protection Claims lack substantiality because, in actuality, there is no disparity of treatment between the categorically and medically needy; because the defendants have merely followed the requirements under the federal statutes and regulations, and because the plaintiffs' claims fall under a rational basis standard of review. Given the insubstantiality of the Equal Protection Claims, the defendants contend, this Court consequently lacks jurisdiction to consider the pendent statutory claims raised by the plaintiffs.

 With respect to the arguments asserted by the parties, the Supreme Court catalogued the various tests for insubstantiality in its seminal decision in Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974):

 
"so attenuated and unsubstantial as to be absolutely devoid of merit," ...; "wholly insubstantial," ...; "obviously frivolous," ...; "plainly unsubstantial," ...; or "no longer open to discussion: .... Id. at 536-37, 94 S. Ct. at 1378-79 (citations omitted)
 
"so insubstantial, implausible, foreclosed by prior decisions of this Court and otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits." Id. at 543, 94 S. Ct. at 1382 (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S. Ct. 772, 777, 39 L. Ed. 2d 73 (1974)).

 After examining the Equal Protection issues raised in Hagans in light of these tests, the Court found that it was not so "immediately obvious ... from the face of the complaint" that the challenged practices were "so patently rational as to require no meaningful consideration." Id. at 541, 94 S. Ct. at 1381.

 Applying the Hagans substantiality tests to the plaintiffs' complaints, this Court similarly concludes that the allegations of disparate treatment between categorically and medically needy persons are not insubstantial. See Greklek v. Toia, 565 F.2d at 1261; Friedman v. Berger, 547 F.2d 724, 727 n. 6 (2d Cir. 1976), cert. denied, 430 U.S. 984, 97 S. Ct. 1681, 52 L. Ed. 2d 378 (1977). Accordingly, in view of the substantiality of the constitutional claims, this Court has jurisdiction under § 1343 over this action, and thus over the plaintiffs' pendent claims. See Miller v. Youakim, 440 U.S. 125, 132 & n. 13, 99 S. Ct. 957, 963, 59 L. Ed. 2d 194 (1979); Hagans v. Lavine, 415 U.S. at 543, 94 S. Ct. at 1382; United Mine Workers v. Gibbs, 383 U.S. 715, 724-28, 86 S. Ct. 1130, 1137-1140, 16 L. Ed. 2d 218 (1966); Holley v. Lavine, 605 F.2d 638, 646 (2d Cir. 1979), cert. denied sub nom. Blum v. Holley, 446 U.S. 913, 100 S. Ct. 1843, 64 L. Ed. 2d 266 (1980).

 Since jurisdiction exists under § 1343, it is unnecessary to consider the plaintiffs' allegation of jurisdiction under § 1331. *fn8"

 The county defendants urge dismissal of the complaint under Fed.R.Civ.P. 12(b) for want of jurisdiction and for failure to state a claim upon which relief can be granted, on the ground that they are immune under the Eleventh Amendment and under § 1983 from claims from retroactive monetary relief. *fn9" Relying on Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). To the extent, however, that the plaintiffs seek declaratory and injunctive relief, in addition to monetary relief; that the county defendants are being sued in both their individual and official capacities; and that these objections thus actually challenge the scope of any relief which might be awarded the plaintiffs, dismissal of the complaint under 12(b) seems unwarranted.

 C.

 Several defendants allege, as a further ground for dismissal of the complaint for failure to state a claim, that the plaintiffs, in asserting a claim under § 1983, have failed to allege that the defendants acted in bad faith, or to deprive the plaintiffs of any rights. Relying on Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976).

 In this regard, it is now settled that a plaintiff need only allege two elements for recovery under § 1983: (1) that the defendant deprived him of a right secured by the Constitution or laws of the United States; and (2) that the defendant deprived him of this right while acting under "color of state law." See Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572 (1980); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S. Ct. 1729, 1732-33, 56 L. Ed. 2d 185 (1978); Adickes v. Kress & Company, 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970); Morrison v. Jones, 607 F.2d 1269, 1275 (9th Cir. 1979), cert. denied, 445 U.S. 962, 100 S. Ct. 1648, 64 L. Ed. 2d 237 (1980); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 576 (6th Cir. 1979). See also, Monroe v. Pape, 365 U.S. 167, 171, 183-87, 81 S. Ct. 473, 481-84, 5 L. Ed. 2d 492 (1961), overruled in part and on other grounds, Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Thus, in § 1983 actions for damages against public officers, the plaintiffs need not allege bad faith. Gomez v. Toledo, 100 S. Ct. at 1924.

 Here the plaintiffs have averred that the defendants have "refuse(d) to determine the eligibility for and amount of medical assistance" for the SSI and AFDC medically needy in accordance with federal requirements, and have "refuse(d) to advise persons who are both SSI and AFDC medically needy of their alleged right to have their medicaid eligibility computed under the category of their choice, all in violation of various alleged constitutional and statutory rights enjoyed by the plaintiffs. Examining these challenges to the personal actions of the defendants, and accepting as true these claims that the defendants, in effect, knowingly and intentionally disregarded certain asserted federal rights of the plaintiffs, this Court finds that the plaintiffs have stated a claim for relief under § 1983. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Williams v. Vincent, 508 F.2d 541, 543 (2d Cir. 1974). See also, Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir. 1979). If, by their reliance upon Rizzo, the county defendants are alluding to the rule that the doctrine of respondeat superior cannot create liability under § 1983, or if, by their assertion that the plaintiffs must plead "bad faith", the defendants are claiming a defense of "good faith" or a qualified immunity, an inquiry into these contentions appears inappropriate at this time, in view of the limited nature here of an inquiry into the sufficiency of the complaint.

 D.

 The defense is also raised that the plaintiffs Gerald and Helen Makin are time-barred under N.Y. CPLR § 217 from maintaining this § 1983 action on behalf of themselves and of an alleged class, inasmuch as they failed to commence their suit within four months after their October 5, 1977 decision after fair hearing became final and binding upon them. Because a New York State court would have dismissed the Makins' claims as time-barred in an Article 78 review proceeding of the agency's actions, the defendants argue, this Court, in the interests of federalism, should also dismiss their claims. Citing Guaranty Trust Company v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945).

 In making this argument, however, the defendants have plainly ignored the rule in this Circuit that the three year statute of limitations contained in N.Y. CPLR § 214(2), which applies to liabilities "created by statute", generally governs suits brought in federal courts under § 1983. See, e.g., Leonhard v. United States, 633 F.2d 599, at 615-16 (2d Cir. 1980) and cases cited therein. Accordingly, in the absence of any applicable exception to this general rule, and because the Makins commenced their action on April 7, 1978, well before the end of the three year statute of limitations period, the suit is not time-barred.

 Finally, the defendants contend that this Court should invoke the doctrine of abstention, and refuse to entertain the action. In order to address properly the arguments raised by the defendants, it is useful to consider initially the Supreme Court's decision in Colorado River Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1975), a case that furnishes an analytical framework for the evaluation of abstention claims. See Naylor v. Case and McGrath, Inc., 585 F.2d 557, 564-65 (2d Cir. 1978). After admonishing federal tribunals at the outset of its opinion in Colorado River that "(abstention) from the exercise of federal jurisdiction is the exception, not the rule," 424 U.S. at 813, the Court identified three categories of circumstances that would be appropriate for abstention.

 Firstly, abstention may be proper " "in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.' " Id. 424 U.S. at 814, 96 S. Ct. at 1244 (quoting County of Allegheny v. Frank Mashuda Company, 360 U.S. 185, 189, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1939) (citing Lake Carriers Association v. MacMullan, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972)); Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941)). See Babbitt v. United Farm Workers National Union, 442 U.S. 289, 306, 99 S. Ct. 2301, 2313, 60 L. Ed. 2d 895 (1979); Goldberg v. Carey, 601 F.2d 653, 658-59 (2d Cir. 1979); Winters v. Lavine, 574 F.2d 46, 69 (2d Cir. 1978); McRedmond v. Wilson, 533 F.2d 757, 760-64 (2d Cir. 1976). See also, Naylor v. Case and McGrath, Inc., 585 F.2d at 564-65. Construing this Pullman abstention rule, the Second Circuit has set forth three "essential conditions" that must be satisfied before a Court can decline jurisdiction:

 
(1) the state statute (must) be unclear or the issue of state law (must) be uncertain ...; (2) the resolution of the federal issue (must) depend upon the interpretation to be given to the state law, ... and ... (3) the state law (must) be susceptible of an interpretation that would avoid or modify the federal constitutional issue.

 McRedmond v. Wilson, 533 F.2d at 761, cited in Winter v. Lavine, 574 F.2d at 69. In this regard, the Second Circuit has also ruled that "when state and federal laws overlap ..., plaintiffs are not precluded from choosing the federal forum." Id. at 763. See Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471, 485 (2d Cir. 1976).

 With respect to the pre-August 29, 1980 period, these three conditions have not been met. First, here there is no state law claim, separate and distinct from the federal claims, that, "if resolved in favor of (these plaintiffs), "would make it wholly unnecessary to consider the (constitutional) claim(s).' " Id. at 484-85 (citation omitted). As the plaintiffs note, the State, as well as federal, statutory schemes mandate that state and county officials follow federal requirements in determining what income and resources to consider in the computation of medicaid eligibility. See N.Y.Soc.Serv.Law § 366(2)(b). Thus, the issues in this action rest upon federal statutory and regulatory law and the defendants' interpretation thereof. See Moore v. Sims, 442 U.S. 415, 427-29, 99 S. Ct. 2371, 2379-80, 60 L. Ed. 2d 994 (1979); McNeese v. Board of Education, 373 U.S. 668, 674, 83 S. Ct. 1433, 1437, 10 L. Ed. 2d 622 (1963). Accordingly, inasmuch as the controlling nature of the pre-August 29, 1980 claims does not turn solely upon state policies and law, these claims do not appear to fall within the scope of the Pullman doctrine.

 With respect to the post-conversion claims of the AFDC medically needy plaintiffs who reside with SSI medically needy persons, the implementation of the "209(b)" plan has not completely displaced the paramount role of federal law in this area. Specifically, the conversion to a "209(b)" plan does not diminish the supremacy of federal law in the computation of medicaid eligibility for AFDC recipients. See 42 C.R.F. § 435.1(d). Cf : 42 C.F.R. §§ 435.401, 435.520, 435.812 (1980), 435.814 (1980), 435.831 (1980).

 Secondly, abstention may be proper in cases that present "difficult questions of state law bearing policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River, 424 U.S. at 814, 96 S. Ct. at 1244 (citing Louisiana Power & Light Company v. City of Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959)). See Burford v. Sun Oil Company, 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943). With respect to this Burford category, the Court has noted that "(i)t is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Colorado River, 424 U.S. at 814, 96 S. Ct. at 1244 (citing Alabama Public Service Commission v. Southern Rail Company, 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951); Burford v. Sun Oil Company, supra). See Naylor v. Case and McGrath, 585 F.2d at 564-65; Mathias v. Lennon, 474 F. Supp. 949, 954-55 (S.D.N.Y.1979); Grossman v. Axelrod, 466 F. Supp. 770, 779 (S.D.N.Y.1979).

 In the instant action, although the State has certainly adopted a regulatory scheme of incalculable importance to its people, the difficult questions of law involve primarily federal statutes and regulations, as interpreted by the defendants. Application of the Burford rule thus seems unwarranted.

 Thirdly, abstention may be appropriate if there is a pending state action. Colorado River, 424 U.S. 816, 96 S. Ct. at 1245 (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971)). See Moore v. Sims, 442 U.S. at 423-24, 99 S. Ct. at 2377-78 (1979); Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977). The defendants Richardson and Lascaris invoke this Younger-Judice doctrine on the ground that the plaintiffs Toomey and Calkins commenced this action at a time when proceedings were pending before the State Department of Social Services. Inasmuch as these plaintiffs have, by now, received decisions after fair hearing, however, abstention on this basis appears inappropriate.

 The defendants forcefully argue, however, that this Court should dismiss this action because the plaintiffs have not availed themselves of state judicial remedies. While not argued by the plaintiffs, clearly there is no exhaustion of state judicial remedies requirement under § 1983. See, e.g., Meyer v. Frank, 550 F.2d 726, 729 (2d Cir.), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977). "(Relief) under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided a remedy." McNeese v. Board of Education, 373 U.S. at 671, 83 S. Ct. at 1435. In short, "abstention should not be ordered merely to await an attempt to vindicate (claims) in a state court." Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511, 27 L. Ed. 2d 515 (1971) (citing Zwickler v. Koota, 389 U.S. 241, 250-51, 88 S. Ct. 391, 396-97, 19 L. Ed. 2d 444 (1967)).

 Accordingly, this Court shall not dismiss any of the plaintiffs' claims under the ...


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