The opinion of the court was delivered by: COSTANTINO
MEMORANDUM OF DECISION AND ORDER
COSTANTINO, District Judge.
Plaintiff, who brings this action by her mother, is a mentally retarded 19 year-old girl. She presently resides at the Ashford Diagnostic Reception Center ("Ashford") in Brooklyn, New York, where she has lived since 1981, when she was placed there at the request of her mother. Ashford is one of five such centers operated by the City of New York Human Resources Administration (the "City") which are intended to provide short-term shelter care and diagnostic evaluations.
Plaintiff brings this action against defendant State Commissioner (the "State") on behalf of herself and a purported class of children in similar circumstances. Plaintiff contends that the City's facilities are not equipped to provide care or treatment to mentally retarded children and that the safety and welfare of these children is constantly jeopardized. The City is not a defendant in this action but rather, seeks leave to intervene as a plaintiff. This action has been brought solely against the State Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"). The plaintiff alleges that the State has violated her civil rights by failing to fulfill a constitutionally mandated duty to provide proper facilities by removing her from the city facility and arranging appropriate long-term placement in a State facility.
Defendant has moved for an order dismissing the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. on the ground that it fails to state a claim upon which relief can be granted. A 12(b)(6) motion to dismiss should not be granted unless it appears from the pleadings beyond doubt that the plaintiff is unable to prove any set facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-56, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir.1981). For the reasons stated below, defendant's motion for an order of dismissal is granted in part and denied in part.
Plaintiff's first claim for relief relies upon the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, and in 42 U.S.C. § 1983.
The due process clause places substantive as well as procedural restrictions on state action. Most substantive restrictions are based on liberties protected by the bill of Rights and are held to apply to the states through the Fourteenth Amendment's due process clause.See Baer v. City of Wauwatosa, 716 F.2d 1117, 1123 (7th Cir.1983).
Defendant contends that it bears no responsibility for the care and treatment of the plaintiff since she is residing in a City institution. The State argues that since the plaintiff is in the City's "custody," no cause of action for deprivation of rights protected by the due process clause can accrue against the State. In essence, the State argues that it is not a proper defendant to this action. This court disagrees, and finds that in light of the relevant State statutory scheme, the State has the ultimate responsibility toward the maintenance of plaintiff's due process rights, and that therefore, plaintiff has stated a claim upon which relief can be granted.
An analysis of the applicable state statutes indicates that any constitutional rights owed to the plaintiff are the responsibility of the State of New York. New York State's Mental Hygiene Law ("MHL") §§ 13.01 and 33.03 entitle mentally retarded citizens of New York to care, treatment and rehabilitation. MHL § 13.07 delegates this responsibility to the OMRDD, an autonomous office within the State Department of Mental Hygiene.
In accordance with New York State Social Services Law ("SSL") § 61, the State has delegated operation of public welfare programs to entities such as New York City:
For the purpose of administration of public assistance and care the state shall be divided into courty and city social services districts as follows:
1. The City of New York is hereby constituted a city social service district. . . .
The State then reimburses the local entities for the care provided.
Under MHL Article 31, the State has established provisions for the regulation and quality control of services for the mentally disabled. MHL § 31.01 establishes that the Commissioner of OMRDD shall ensure that all services for the mentally disabled, whether provided by the department, by a local government or by provider of services, are periodically evaluated. Moreover, it is the State's statutory scheme that permitted plaintiff to be admitted to the City facility. Under SSL § 384-a, "[t]he care and custody of a child may be transferred by a parent . . . to an authorized agency . . . in accordance with the provisions of this Section."
The Commissioner of OMRDD also grants operating licenses to facilities that provide care and treatment to the mentally disabled. MHL § 31.02 provides that no provider of services shall engage in the "operation of a residential facility for the care, custody or treatment of the mentally disabled . . .," without an operating certificate issued by the Commissioner. The operation of such facilities must "be in accordance with the . . . regulations of the Commissioner." MHL §§ 31.07 and 31.09 provide OMRDD with far-reaching powers of investigation and inspection. Further, the City's responsibility toward the children in its diagnostic centers is defined by SSL § 398, which mandates that shelter and care must be provided for all children in need and that admission be obtained for mentally disabled children to State or other suitable institutions in accordance with New York's Mental Hygiene Law.
Further, the State's argument that the city's exercise of physical custody precludes the State from having legal custody of the plaintiff, is contrary to law.Physical custody is not necessarily the equivalent of legal custody. See Doe v. Staples, 706 F.2d 985 (6th Cir.1983).
It would thus seem clear that New York State has a substantial responsibility for overseeing and regulating the administration of services provided to mentally disabled patients in facilities such as Ashford.
In Reynolds v. Sims, 377 U.S. 533, 575, 84 S. Ct. 1362, 1388, 12 L. Ed. 2d 506 (1964), the court noted that political subdivisions of states have never been considered as "sovereign entities" but rather as "subordinate governmental instrumentalities" designed "to assist in the carrying out of State governmental functions." Further, New York State court decisions have held that the State's statutory scheme provides that the State has the ultimate responsibility for the care and treatment of mentally retarded patients.Savastano v. Provost, ...