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June 30, 1981

Daniel PHILIPP, a mentally retarded citizen, by his sister and next friend Shirley Stone; Virginia Hains, a mentally retarded citizen, by her mother and next friend, Ann Hains; Francis Wilbur; Kathy Swartz, an infant, by her mother and next friend Bridget Swartz, on behalf of themselves and all other persons similarly situated, Plaintiffs,
Hugh L. CAREY, Governor of the State of New York; James E. Introne, Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities; Michael Dillon, Director of the Syracuse Developmental Center, Syracuse, New York, Defendants

The opinion of the court was delivered by: MUNSON


The Syracuse Developmental Center (SDC) is a 560 bed, state-owned mental health care facility in Syracuse, New York. Persons are confined at SDC by one of three means. First, some individuals are involuntarily confined pursuant to court order. N.Y. Mental Hygiene Law § 15.27. Second, in many instances an individual, or his parent, guardian, or committee, may request admittance. N.Y. Mental Hygiene Law § 15.13. Finally, persons who lack the necessary mental capacity to make their own decisions are admitted on a "non-objecting" status. N.Y. Mental Hygiene Law § 15.25.

The plaintiffs are mentally retarded residents of SDC. None of them have been placed in SDC pursuant to court order. They have instituted this action under 28 U.S.C. §§ 1331, 1343, 2201, and 2202 for declaratory and injunctive relief against the defendants, who allegedly bear responsibility for the operation of SDC and for the provision of services to the plaintiffs.

 The gravamen of the complaint is that the plaintiffs are provided inappropriate programs and services, and that the plaintiffs are capable of residing in less restrictive settings in the community. Specifically, the plaintiffs argue that at SDC, the defendants, as a substitute for proper care, administer debilitating psychotropic drugs and other medications to mitigate undesirable behaviors that allegedly are induced by institutionalization. In addition, they aver that the SDC staff is inadequate to protect them from physical harm or to provide them in all other respects with suitable care and with specialized services such as speech or hearing therapy. Moreover, although many residents have been specifically recommended by SDC personnel for community placements, the defendants have not established extrainstitutional residential opportunities. Thus, the plaintiffs are allegedly confined unnecessarily and improperly in an institutional environment where they are stagnating and not recognizing their full intellectual, emotional, social, and physical potential, and where they are, in many instances, regressing and deteriorating.

 Because of these alleged actions and omissions, the plaintiffs claim that their rights under the federal and state Constitutions and under various federal and state statutory and regulatory schemes have been violated. Specifically, the plaintiffs allege violations of the First, Fourth, Eighth, Ninth, and Fourteenth Amendments to the federal Constitution; violations of 29 U.S.C. § 794 and of 42 U.S.C. §§ 1983, 6010; violations of 45 C.F.R. §§ 84.34(a), (b), and 84.54; violations of Article XVII and Sections 1, 3, 4, and 6 of the New York State Constitution; and violations of New York Mental Hygiene Law §§ 13.07, 13.15, 29.15, 29.16, 31.01, 31.04, 31.19, 33.01, 33.03, and 41.33.

 Presently before the Court are motions by the defendants for dismissal of the complaint under Fed.R.Civ.P. 12(b)(6), or, in the alternative, under the doctrine of abstention, and by the plaintiffs for class action certification.


 Turning to the defendants' motion to dismiss, the standard of review under Fed.R.Civ.P. 12(b)(6) is a narrow one. A complaint should be dismissed only if the plaintiff is not entitled to relief under any set of facts he could prove. In making this determination, a court must construe the complaint liberally, and deem admitted all material averments. See Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).

 Because the defendants have put forth numerous arguments in support of this motion, their contentions shall be addressed separately.


 For their first principle argument, the defendants contend that the plaintiffs have no cognizable federal constitutional rights.

 1. Eighth Amendment and Due Process Clause

 The plaintiffs claim a right to treatment, or habilitation, in a setting that is least restrictive of their liberty, and freedom from harm under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. They define "habilitation" as:

the process of attaining and maintaining such self-care and self-support skills as will enable retarded citizens to achieve the maximum degree of independence their capacities permit, and provide them with a realistic opportunity to lead a more useful and meaningful life and to return to society.

 It is the defendants' position that only non-dangerous persons who are involuntarily committed for the purpose of treatment enjoy a right to treatment; that the named plaintiffs, as evidenced by their complaint, do not enjoy such protection because none of them have been civilly committed; and that the plaintiffs can assert no Eighth Amendment rights in this non-criminal context.

 With respect to the defendants' arguments, it is true that courts have tended to recognize a general right to treatment, or habilitation, in favor of non-dangerous, civilly committed persons. These courts, for the most part, have rooted such a right in liberty interests secured by the Due Process Clause. See, e.g., Romeo v. Youngberg, 644 F.2d 147, 157-58 (3d Cir. 1980) (en banc), cert. granted, 451 U.S. 982, 101 S. Ct. 2313, 68 L. Ed. 2d 838 (1981); Scott v. Plante, 641 F.2d 117, 130-33 (3d Cir.) pet. for cert. filed April 10, 1981, 80-1699, 49 U.S.L.W. § 790 (April 21, 1981); Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978); Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974); Donaldson v. O'Connor, 493 F.2d 507, 518-27 (5th Cir. 1974), vacated and remanded on other grounds, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975); Covington v. Harris, 136 U.S. App. D.C. 35, 419 F.2d 617, 622-23 (D.C.Cir. 1969). But see New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752, 758-64 (E.D.N.Y.1973). Cf. Vitek v. Jones, 445 U.S. 480, 491-92, 100 S. Ct. 1254, 1262-1263, 63 L. Ed. 2d 552 (1980); Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323 (1979); O'Connor v. Donaldson, 422 U.S. 563, 573, 95 S. Ct. 2486, 2492, 45 L. Ed. 2d 396 (1975). For example, some courts have engaged in a quid pro quo analysis: where the justification for civil commitment in the first instance is treatment, fundamental notions of Due Process would be offended if treatment were not forthcoming. See, e.g., ...

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