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November 9, 1983

FLORENCE KOSTER, JOHN KOSTER, DONNA KOSTER, JOHN KOSTER, JR., HELEN KOSTER, JANET KOSTER, EDWARD KOSTER, PATRICIA WEATHERLY, LA SHONTA WEATHERLY, MORRIS WEATHERLY, CHRISTOPHER WEATHERLY and TERREL WEATHERLY, on their own behalves and on behalf of all others similarly situated, Plaintiffs, against ARTHUR Y. WEBB, as Acting Commissioner of the New York State Department of Social Services, FRANCIS T. PURCELL, as Executive of the County of Nassau, and JOSEPH A. D'ELIA, as Commissioner of the Nassau County Department of Social Services, Defendants.

The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge:

 This is an action under 42 U.S.C. § 1983 alleging that defendants have unlawfully denied plaintiffs emergency shelter in violation of federal law. Plaintiffs also allege violations of New York State law, invoking the Court's pendent jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Defendants Purcell and D'Elia move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted, and Fed.R.Civ.P. 56 for summary judgment.Because matters outside of the pleadings have not been presented to and accepted by the Court, this case is not ripe for summary judgment. Furthermore, because I find that plaintiffs' complaint states both a federal claim under 42 U.S.C. § 1983 as well as a valid pendent state law claim, the Rule 12(b)(6) motion is denied in its entirety.


 Plaintiffs named in the complaint comprise two needy homeless families living in Nassau County. They allege that defendants have arbitrarily denied them emergency shelter in violation of both federal and state law. Specifically, the members of the Koster family allege that on September 2, 1982 they were evicted from their home because their landlord wished to use the premises for his own family. Complaint, P31. The Kosters, who had been receiving public assistance since 1979, Complaint, P30, repeatedly asked the defendants for emergency shelter. Commplaint, P32. Except for a three day period in early September, these requests were denied. Complaint, P33. The denials were not in writing. Complaint, P57.

 The Weatherly family, also recipients of public assistance, Complaint, P44, were rendered homeless on May 20, 1982 when their apartment was completely destroyed by fire.Complaint, P45. The Weatherlys requested emergency shelter from defendants and were placed in a single room with one bed and one cot without bathroom or cooking facilities. Complaint, P48. A subsequent request by a social worker on behalf of the Weatherlys for other shelter was denied by defendants. Complaint, P48. The Weatherlys, five in number, lived in this room for 12 days before Mrs. Weatherly obtained permanent housing. Complaint, P49.

 In addition to their allegations that they have individually been denied emergency shelter, both the Kosters and the Weatherlys, on behalf of a proposed class of needy homeless families in Nassau County, allege that defendants have neither implemented a plan to provide shelter for such families, Complaint, P39, nor maintain any shelters for needy homeless families in Nassau County. Complaint, P40. Plaintiffs allege further that defendants either refused to provide needy homeless families with emergency shelter, Complaint, P42, or referred needy homeless families to grossly substandard shelters which are a hazard to health and safety. Complaint, P41.

 Plaintiffs allege, both individually and on behalf of the proposed class, as causes of action against moving defendants, federal violations of the Social Security Act and state violations of the New York Social Services Law and the New York State Constitution. Specifically, they allege that defendants Purcell and D'Elia, acting under color of state law, denied plaintiffs emergency shelter, thereby violating the Social Security Act and the equal protection and due process clauses of the United States Constitution. As pendent state claims plaintiffs allege that moving defendants have violated the New York Social Service Law, the New York Code of Rules and Regulations, as well as provisions of the New York State Constitution safeguarding care for the needy, equal protection under the State's laws and due process of law.

 Plaintiffs seek declaratory and injunctive relief as well as damages, costs and attorneys' fees.


 Moving defendants' motion to dismiss cannot be granted unless, taking plaintiffs' allegations as true, the complaint fails to state a cause of action. In other words, plaintiffs' "complaint [will] not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 In a far reaching affidavit in support of the motion, moving defendants' attorney makes a variety of legal arguments, only some of which are relevant to a motion to dismiss for failure to state a claim. Moving defendants apparently also seek to challenge the court's jurisdiction and to respond affirmatively to the complaint by way of denial and affirmative defense.

 Considering first the court's jurisdiction to entertain this suit, the law is clear that individual citizens may seek to enforce federal statutory rights in federal court against state defendants pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983. 28 U.S.C. § 1331 gives this court jurisdiction over all cases arising under the Constitution or laws of the United States regardless of the amount in controversy. This includes lawsuits brought pursuant to 42 U.S.C. § 1983.

 It is also clear that 42 U.S.C. § 1983 may be used by plaintiffs to enforce their purported right to emergency shelter under the Social Security Act. In Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), the Supreme Court unequivocally held that 42 U.S.C. § 1983 "encompasses claims based on purely statutory violations of Federal law." Id. at 2,3. Similarly, the Supreme Court has held that "suits in Federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participatory states." Edelman v. ...

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