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August 31, 1994

MARIO CUOMO, as Governor of the State of New York; THOMAS A. MAUL, as Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities; FRED F. FINN, as Director of the Oswald D. Heck/Eleanor Roosevelt Developmental Disabilities Service Office; and BARBARA HAWES, as Director of the Sunmount Developmental Disabilities Service Office, Defendants.

The opinion of the court was delivered by: DAVID G. LARIMER

 Arlene A. Hughes, Director of the Mental Hygiene Legal Service, brings this action under 42 U.S.C. § 1983 on behalf of William David ("David" or "plaintiff"), who since 1986 has been a resident of the Monroe Secure Unit for Intensive Treatment ("MSU") at the Monroe Developmental Center in Rochester. Plaintiff contends that defendants' failure to place him in a less restrictive, community-based setting has violated his right to due process under the Constitution. He also alleges that defendants have violated the New York State Mental Hygiene Law. Plaintiff seeks declaratory and injunctive relief, and in particular, an injunction directing defendants to place him in a community treatment facility.

 Defendants have moved to dismiss the complaint. They contend that the allegations in the complaint are insufficient to state a constitutional violation, and that the claim based on state-law violations is barred by the Eleventh Amendment.


 Shortly thereafter, David was transferred to MSU. This unit provides intensive treatment on a locked ward for developmentally disabled patients with other behavioral or emotional impairments. MSU accepts residents from throughout the state, and under OMRDD policy, residents are returned to the area from which they came when the MSU treatment team determines that the residents no longer need the type of treatment provided at MSU.

 According to the allegations in the complaint, in early 1988, David's "treatment team," which apparently consisted of physicians and other health care providers, determined that he was appropriate for transfer out of MSU into a less restrictive, community placement setting with around-the-clock supervision.

 David's treatment team has requested that defendants find an appropriate community placement for him near the Heck Center since around February 1988, but so far that has not occurred. In January 1993, defendants took some steps toward developing a plan to put David in a community residence, but that process has never gotten past the preliminary stages. At this point, the matter is at a standstill, and nothing is being done to put David in community placement.


 1. Standard on a Motion to Dismiss

 In ruling on a motion to dismiss under Rule 12(b)(6), the Court must liberally construe the complaint in the light most favorable to the plaintiff. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994), petition for cert. filed, (U.S. May 18, 1994) (No. 93-9204). The court must accept the material allegations of the complaint as true and draw all inferences in favor of the pleader. Id. "Moreover, 'the district court should deny the motion [to dismiss] unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief.'" IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quoting Ryder Energy Distr. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), petition for cert. filed, 63 U.S.L.W. 3001 (U.S. June 21, 1994) (No. 93-2308). "This standard is applied with even greater force where the plaintiff alleges civil rights violations . . ." Hernandez, 18 F.3d at 136; accord Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (Rule 12(b)(6) standards "applied with particular strictness" in civil rights actions).

 2. Due Process Claim

 Relying on the Second Circuit's decision in Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239 (2d Cir. 1984), defendants argue that this action must fail because there simply is no constitutional right to community placement for residents of psychiatric facilities. The court in that case vacated a judgment entered after a bench trial in favor of a class of mentally retarded plaintiffs which ordered that 400 residents of a state school for the mentally retarded be released into community placement.

 I do not read the court's decision in Society for Good Will as broadly as defendants, however. Although the court did state "that there is no such entitlement [to community placement]," id. at 1248, that statement must be read in context. The opinion as a whole makes clear that the court did not intend any sweeping declaration that there can never be any right to community placement. Rather, the court's decision was limited to its holding that "mere residence in an ...

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