Perez v. Lavine, 73 Civ. 4577.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation378 F. Supp. 1390
Docket NumberNo. 73 Civ. 4577.,73 Civ. 4577.
PartiesMaria PEREZ et al., Plaintiffs, v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, and Jule M. Sugarman, as Commissioner of the New York City Department of Social Services, Defendants.
Decision Date22 July 1974

Community Action for Legal Services, Inc., New York City (Marttie L. Thompson, Michael A. O'Connor, New York City, of counsel); Bronx Legal Services Corporation "A", Bronx, New York, (James R. Potter, New York City, of counsel); Bronx Legal Services Corporation "B", Bronx, New York, (Rina Biaggi Morales, Bronx Legal Services, Corp. C., Bronx, N.Y., of counsel); Center on Social Welfare Policy and Law, New York City (Steven J. Cole, Adele M. Blong, New York City, of counsel) for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., State of New York (Burton Herman, Asst. Atty. Gen., of counsel) for defendant Lavine.

Adrian P. Burke, Corp. Counsel, New York City (Gayle S. Redford, Gregory D. Frost, New York City, of counsel), for defendant Sugarman.

Levy, Gutman, Goldberg & Kaplan, New York City (Jeremiah S. Gutman, New York City, of counsel) for New York Civil Liberties Union as amicus curiae.

Michael Ira Stolzar, New York City, for various welfare agencies as amici curiae.

BAUMAN, District Judge.

Before the court is the latest in a continuing succession of challenges to the manner in which New York administers its welfare programs. The named plaintiffs are either applicants for or recipients of public assistance1 whose cases are assigned to the eleven welfare centers in the Bronx. Their complaint broadly attacks existing conditions at these facilities; it alleges that each of these centers now handles a volume of cases far in excess of its capacity, and that the resultant overcrowding serves to deprive them of the benefits and services which they are due. Plaintiffs seek a declaratory judgment that the defendants, commissioners of the departments of social services for the City and State of New York, are obligated to provide sufficient trained personnel and adequate facilities to insure the prompt and adequate delivery of services. The complaint further prays for an injunction restraining the defendants from administering public assistance programs in the Bronx with inadequate staff and facilities.

The complaint sets forth with considerable particularity the alleged abuses existing at the welfare centers. It is contended that these centers have case-loads which range from sixty to two hundred fifty percent above their capacity. It is further alleged that on any given business day, between 300 and 1,000 people line up outside the centers, and that the overcrowding is so severe that some arrive as early as midnight of the preceding day in order to insure a hearing for their request or complaint. Consequently, many hundreds of people, it is asserted, are turned away daily without gaining access to the centers. Those who get in are forced to wait between eight and sixteen hours. The tension and frustration borne of this congestion often leads to fights and other disruptions, which disturb residents of the neighborhood and further reduce the efficiency of the operation. Plaintiffs also complain of the inexperience and ineptitude of the staff; over fifty percent of the income maintenance workers, it is contended, have less than six month's experience, and new employees receive little meaningful training before entering upon their duties.

The allegations of the individual plaintiffs illustrate the alleged abuses even more graphically. Maria Perez, for example, states that she regularly arrives at one of the centers at 3:00 A.M., and often waits until 5:00 P.M. before receiving attention. Anselmo Alvarez is a recipient of Home Relief, a New York State program, but has had an application pending for assistance under the Federal Aid to the Disabled program since November, 1972. In June, 1973 he sought permission to move to a larger apartment he had succeeded in locating. He arrived at his welfare center at 7:00 A.M. on two successive days but was unable to gain access to a staff worker; he consequently lost the apartment. The plights described by the remaining named plaintiffs are similar. Some have physical infirmities that make them unable to endure the hours of waiting in line; others have had to make three or four day long visits to a center before receiving service.

The complaint sets forth five causes of action. It is alleged that the overcrowding and the consequent lengthy delays in the provision of services constitute a deprivation of property without due process of law in violation of the Fourteenth Amendment (Count 3). It is further alleged that the chaotic conditions existing in the Bronx welfare centers do not obtain elsewhere either in New York City or New York State, and that those welfare recipients compelled to resort to the Bronx centers for services are denied the equal protection of the law in violation of the Fourteenth Amendment (Count 4). Three statutory claims are also alleged. It is claimed that the failure of state and city officials to furnish assistance "with reasonable promptness to all eligible individuals" violates various provisions of the Social Security Act2 and of the Food Stamp Act of 1964.3 The failure to comply with the mandate of these federal statutes is alleged to violate the Supremacy Clause of the Constitution (Count 1). It is further claimed that the public assistance programs, as administered in these welfare centers, violate various regulations promulgated by the Department of Health, Education and Welfare4 and are thus also violative of the Supremacy Clause (Count 2). Finally, it is alleged that defendant Lavine is not in compliance with obligations imposed by various provisions of the Social Security Act5 in failing to respond to complaints concerning the aforementioned conditions at the Bronx centers (Count 5).

Both defendants have now moved to dismiss the complaint for want of subject matter jurisdiction and failure to state a claim on which relief can be granted, pursuant to Rules 12(b) (1) and (6) of the Federal Rules. Plaintiffs, in turn, have moved pursuant to Rule 23(c)(1) for an order declaring the instant case a class action.6

I.

The combination of statutory and constitutional claims set forth in the complaint raises familiar jurisdictional problems. Plaintiffs claim that jurisdiction can be premised either on 28 U.S.C. § 1331 or 28 U.S.C. §§ 1343(3) and (4). In order for jurisdiction to exist under § 1343(3), the complaint must present a substantial constitutional question. Almenares v. Wyman, 453 F.2d 1075 (2nd Cir. 1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972); Aguayo v. Richardson, 473 F.2d 1090 (2nd Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 32 L.Ed.2d 101 (1974). If a substantial constitutional question is presented, the court may also consider the pendent statutory claims. Almenares v. Wyman, supra; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Alternatively, plaintiffs also argue that jurisdiction exists pursuant to § 1331; they seek to obviate the $10,000 amount in controversy requirement by invoking Bass v. Rockefeller, 331 F. Supp. 945 (S.D.N.Y.1971), dismissed as moot, 464 F.2d 1300 (2nd Cir.1971), which permitted a class of welfare recipients to aggregate their claims when they asserted a common and undivided interest in a single fund. The propriety of § 1331 jurisdiction in such circumstances has never been addressed by our Court of Appeals. See Almenares v. Wyman, supra, at fn. 11, and Aguayo v. Richardson, supra, at fn. 15. See also, Note, Federal Jurisdiction over Challenges to State Welfare Programs, 72 Columbia L.Rev. 1404 (1972). Because I have concluded that at least one of plaintiffs' constitutional arguments is substantial, I also find it unnecessary to consider the applicability of § 1331.

The level of "substantiality" necessary to premise jurisdiction on § 1343(3) has been the subject of consideration in two recent Supreme Court decisions, Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973) and Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). The Court reiterated, as it has frequently in the past, that a claim is constitutionally insubstantial only if it can be deemed "essentially fictitious", "obviously frivolous', or "obviously without merit." See Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L.Ed.2d 332 (1962); Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 30 S.Ct. 326, 54 L.Ed. 482 (1910); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062 (1933); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed.2d 152 (1933); McGilvra v. Ross, 215 U.S. 70, 30 S.Ct. 27, 54 L.Ed. 95 (1909).7 The Court noted in Goosby that "in the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial . . ." 409 U.S. at 518, 93 S.Ct. at 859. The Court in Hagans, in finding the particular claim there presented to be substantial, based its determination at least in part on the fact that "we are unaware of any cases in this Court specifically dealing with this or any similar regulation and settling the matter one way or the other." From this explication I am given to understand that the Court would deem only two types of constitutional claims insubstantial: (a) those conclusively foreclosed by prior decisions or (b) those patently frivolous or incapable of reasoned elaboration. It seems that any constitutional claim for which cogent and well supported arguments can be adduced must be deemed substantial, regardless of the court's...

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  • Allen v. State, Human Rights Com'n
    • United States
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    ...in suspension hearing raised potential procedural due process issues which precluded grant of summary judgment); Perez v. Levine, 378 F.Supp. 1390, 1395 (S.D.N.Y.1974) ("excessive administrative delay in the furnishing of services can rise to a denial of due process"); Steinberg v. Fusari, ......
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    ...are of a size and extent difficult to comprehend." 402 U.S. at 399, 91 S.Ct. at 1426. The plaintiff, as did the court in Perez v. Lavine, 378 F.Supp. 1390 (S.D.N.Y.1974), finds some support in Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 46 S.Ct. 408, 70 L.Ed. 747 (1926). However, in......
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    ...which a person is statutorily entitled can amount to a deprivation sufficient to bring the Due Process clause into play. Perez v. Lavine, 378 F.Supp. 1390 (S.D.N.Y.1974); Nelson v. Sugarman, 361 F.Supp. 1132 (S.D.N.Y.1972). However, by failing to set out either in their answering papers or ......
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    ...S.Ct. 54, 27 L.Ed.2d 91 (1970); Norwalk C. O. R. E. v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968); Perez v. Lavine, 378 F.Supp. 1390 (S.D.N.Y.1974). This case is therefore unlike the situation in Dale v. Hahn, 440 F.2d 633, 640 (2d Cir. 1971), cited by defendants where c......
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