644 F.2d 147 (3rd Cir. 1980), 78-1982, Romeo v. Youngberg

Docket Nº:78-1982.
Citation:644 F.2d 147
Party Name:ROMEO, Nicholas, an incompetent, by his mother and next friend, Paula Romeo, Appellant, v. Duane YOUNGBERG, individually and in his official capacity as Superintendent, Pennhurst State School and Hospital, and Richard Matthews, individually and in his official capacity as Director of Resident Life, Pennhurst State School and Hospital, and Marguerit
Case Date:November 24, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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644 F.2d 147 (3rd Cir. 1980)

ROMEO, Nicholas, an incompetent, by his mother and next

friend, Paula Romeo, Appellant,

v.

Duane YOUNGBERG, individually and in his official capacity

as Superintendent, Pennhurst State School and Hospital, and

Richard Matthews, individually and in his official capacity

as Director of Resident Life, Pennhurst State School and

Hospital, and Marguerite Conley, individually and in her

official capacity as Unit Director, Unit 9, Pennhurst State

School and Hospital.

No. 78-1982.

United States Court of Appeals, Third Circuit

November 24, 1980

Argued Jan. 9, 1979.

Reargued En Banc April 28, 1980.

As Amended Dec. 12, 1980.

Certiorari Granted May 18, 1981.

See 101 S.Ct. 2313.

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Edmond A. Tiryak (argued), Elliot B. Platt, Community Legal Services, Philadelphia, Pa., for appellant.

Gerald Gornish, Acting Atty. Gen., David H. Allshouse, Norman J. Watkins, Deputy Attys. Gen., Chief, Civ. Litigation, Dept. of Justice, Harrisburg, Pa., Jonathan Wheeler, Frank, Margolis, Edelstein & Scherlis, Joseph W. McGuire (argued), McWilliams, Baulis & Silverman, Philadelphia, Pa., for appellees.

Argued Jan. 9, 1979.

Before SEITZ, Chief Judge, and GIBBONS and HIGGINBOTHAM, Circuit Judges.

Reargued April 28, 1980.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, ROSENN, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION

ADAMS, Circuit Judge.

The present controversy inhabits the twilight area of developing law concerning the constitutional rights of the involuntarily committed mentally retarded. Nicholas Romeo appeals, through his next friend, from a jury verdict for the defendants, officials of the Pennhurst State School and Hospital, in a suit brought pursuant to 42 U.S.C. § 1983 (1976). Plaintiff alleges trial errors in the admission and exclusion of evidence, in the court's instructions to the jury and in the manner in which the trial was conducted. Because of the improper exclusion of relevant expert medical testimony and critical flaws in the standards that were employed in charging the jury, we vacate the judgment of the district court and remand for a new trial.

While courts in the past decade have carefully focused on the procedural protections applicable to the initial commitment of the mentally handicapped, see Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), relatively little has been resolved with respect to conditions of confinement or the extent of the state's duty to protect and to treat the institutionalized. Specifically at issue here is the judicial responsibility to enforce constitutional guarantees governing the incarceration of the institutionalized retarded. 1 This, in turn, calls on us to deal with the question of what standards of proof are required in a § 1983 suit for damages, in which a mentally retarded plaintiff claims that the defendants improperly shackled him, failed to provide adequate protection for him, and did not make appropriate treatment available to him. In defining the principles relating to claims for protection and treatment of the retarded, carefully crafted instructions must be utilized that will reflect the duty of courts to safeguard the constitutional rights of those confined, but also will be sensitive to the prerogative of the medical community to exercise its professional judgment and to the undeniable fiscal and administrative concerns of the state.

I.

Romeo is a profoundly retarded person. Although he is physically thirty years old,

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he suffers from a chemical imbalance of the brain that renders his mental capacity approximately that of an eighteen month old child. For the first twenty-six years of his life Romeo lived with his parents in South Philadelphia. On May 10, 1974 his father died. Within a month his mother, finding herself unable to care for him, applied to the Philadelphia Common Pleas Court for his admission to a mental retardation facility. On July 11, 1974, the court committed Romeo to the Pennhurst State School and Hospital, pursuant to the involuntary commitment provision of the Pennsylvania Mental Health & Mental Retardation Act of 1966. Pa.Stat.Ann. tit. 50, § 4406 (Purdon) (1969).

It is not contested that, while confined at Pennhurst, Romeo was injured on over seventy occasions. These injuries were both self-inflicted and the result of attacks by other residents, some in retaliation against Romeo's aggressive behavior. The injuries included a broken arm, a fractured finger, injuries to sexual organs, human bite marks, lacerations, black eyes, and scratches. Moreover, some of plaintiff's injuries became infected, either from inadequate medical attention or from contact with human excrement that the Pennhurst staff failed to clean up.

Since Romeo is incompetent, this action was brought on his behalf by his mother as next friend. The § 1983 complaint seeks damages for the described injuries from three officials at Pennhurst: C. Duane Youngberg, then superintendent, Richard Matthews, director of resident life, and Marguerite Conley, director of the plaintiff's assigned unit at the time most of the injuries occurred. There is evidence which indicates that each defendant knew of some or all of the seventy-plus injuries suffered by Romeo.

After the case was filed, the district court permitted the plaintiff to amend the complaint to include allegations that, since the initiation of the suit, defendants had kept Romeo shackled to a bed or a chair in the hospital at Pennhurst for long periods each day. The amended complaint, which posited a violation of plaintiff's constitutional right to treatment occasioned by the shackling, exposure to attacks and inappropriate treatment, 2 again sought compensatory and punitive damages from the defendants. 3

At the time of trial, the district court refused to permit plaintiff's two experts. Dr. Foxx and Dr. Grover, to testify about the lack of programming and activities on Romeo's ward, which they believed accounted for his numerous injuries, and about alternative methods of treatment that would have reduced the frequency of attacks. 4 One of the experts would have testified further that the restraints served no medical purpose and were used solely for the convenience of the staff. The court sustained objections to all of this proffered medical and psychiatric testimony on the theory that admission of such evidence would transform a § 1983 action into a malpractice case. 5 In addition, the court

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rejected the plaintiff's proposed jury instruction which maintained that the plaintiff had a right to treatment in the least restrictive environment. The court decided instead that defendants' shackling practices and duty to protect Romeo should be evaluated solely on the basis of an Eighth Amendment standard. Further, in what was described as an attempt to distinguish this § 1983 suit from a malpractice case, the court subjected plaintiff's claims of inadequate treatment to an Eighth Amendment standard of "deliberate indifference to the serious medical needs of the resident."

Because we believe that the Eighth Amendment which limits the scope of judicial review of conditions of incarceration for the criminally convicted to a "cruel and unusual" threshold is inappropriate in the context of civil as distinguished from criminal confinement, the result reached in the district court must be vacated. Moreover, the uncharted legal issues which have arisen and the potential ramifications of this case impel us to set out in some detail the level of judicial scrutiny that should be accorded the intricate set of legal, medical and societal interests that intersect in the situation presented here.

II.

Of critical importance in this appeal is the recognition that this is a due process case, not a controversy to be governed by "cruel and unusual" principles. Although the complaint alleged Eighth as well as Fourteenth Amendment violations, Ingraham v. Wright 6 and Bell v. Wolfish 7 would appear to preclude reliance on the minimal safeguards of the Eighth Amendment in a non-criminal context. Ingraham held that the Cruel and Unusual Punishments Clause is inapplicable in the context of corporal punishment in public schools; Wolfish found Eighth Amendment scrutiny inappropriate for evaluating conditions of pretrial detention. 8 Indeed, Wolfish explicitly recognizes a right of innocent persons to be free from punishment, a proposition directly grounded in the word "liberty" that appears in the Due Process Clause. See 441 U.S. at 535, 99 S.Ct. at 1872, id. at 580, 99 S.Ct. at 1896. (Stevens, J., dissenting). Thus, it is the Fourteenth Amendment's prohibition of state deprivation of life, liberty or property without due process of law that is the appropriate fulcrum of our concerns today.

It is necessary, of course, to determine initially whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of life, liberty and property. If the answer to that inquiry is in the affirmative, we must then determine what level of judicial scrutiny is applicable to the various interests in issue here.

We are fully cognizant that the propriety of a § 1983 claim, in the present situation, turns on whether a constitutional right is at issue. The concurrence is undeniably correct in requiring that we distinguish between constitutional violations and ordinary malpractice claims. But the implication that the existence vel non of a state remedy for example a malpractice action is relevant to the determination of whether...

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