Developmental Disabilities Advocacy Center, Inc. v. Melton, s. 81-1727

• Decision Date: 22 September 1982
• Docket Number: 81-1755,Nos. 81-1727,s. 81-1727
• Citation: 689 F.2d 281
• Parties: DEVELOPMENTAL DISABILITIES ADVOCACY CENTER, INC., Plaintiff, Appellant, and Harold Tuttle, et al., Plaintiffs, Appellees, v. Jack MELTON, et al., Defendants, Appellees. DEVELOPMENTAL DISABILITIES ADVOCACY CENTER, INC., Plaintiff, Appellee, and Harold Tuttle, et al., Plaintiffs, Appellants, v. Jack MELTON, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 281

689 F.2d 281

DEVELOPMENTAL DISABILITIES ADVOCACY CENTER, INC., Plaintiff, Appellant, and Harold Tuttle, et al., Plaintiffs, Appellees, v. Jack MELTON, et al., Defendants, Appellees.

DEVELOPMENTAL DISABILITIES ADVOCACY CENTER, INC., Plaintiff, Appellee, and Harold Tuttle, et al., Plaintiffs, Appellants, v. Jack MELTON, et al., Defendants, Appellees.

Nos. 81-1727, 81-1755.

United States Court of Appeals First Circuit.

Argued May 4, 1982.

Decided Sept. 22, 1982.

Kenneth M. Brown, Nashua, N. H., with whom Kahn, Brown & Bruno, Nashua, N. H., was on brief, for plaintiffs, appellants Harold Tuttle, Alice Graham and Lillian Cooke.

Ronald K. Lospennato, St. Johnsbury, Vt., with whom M. Elaine Beauchesne, Penacook, N. H., was on brief, for plaintiff, appellant Developmental Disabilities Advocacy Center, Inc.

James E. Townsend, Asst. Atty. Gen., Concord, N. H., with whom Gregory H. Smith, Atty. Gen., Peter C. Scott, Asst. Atty. Gen., and Loretta S. Platt, Atty., Division of Legal Counsel, Concord, N. H., were on brief, for defendants, appellees Jack Melton and Gary Miller.

Robert D. Fleischner, Steven J. Schwartz, William Crane, Richard Howard, and Carol Booth, on brief for Mental Patients Advocacy Project and Developmental Disabilities Law Center, amici curiae.

Richard A. Cohen, Manchester, N. H., John D. MacIntosh, and New Hampshire Legal Assistance, Concord, N. H., on brief for New Hampshire Association for Retarded Citizens, amicus curiae.

Joseph H. Rodriguez, Camden, N. J., Herbert D. Hinkle and R. Michael Kemler, Asst. Deputy Public Advocate, Trenton, N. J., on brief for National Ass'n of Protection and Advocacy Systems, amicus curiae.

Before ALDRICH, CAMPBELL and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The Developmental Disabilities Advocacy Center ¹ ("DDAC") and "next friend" Freda Smith (suing on behalf of three residents ² of New Hampshire's Laconia State School and Training Center ("LSS")) appeal from the district court's dismissal of their suit brought pursuant to 42 U.S.C. § 1983. In the suit plaintiffs sought injunctive and declaratory relief to prevent LSS officials from curtailing visits between DDAC lawyers and mentally retarded residents living at LSS. ³ After a day-long hearing on plaintiffs' motion for preliminary injunction and defendants' Rule 12(b) motion to dismiss for failure to state a claim, the court found that all the plaintiffs lacked "standing to challenge the visitation regulations of LSS" and granted the motion to dismiss. The court also denied plaintiffs' request to certify the suit as a class action.

I.

LSS is New Hampshire's only state institution for the mentally retarded. Located in the country, it housed about 550 residents in 1980. Seventy percent of the residents are "severely" (I.Q. of 20-35) or "profoundly" (I.Q. of less than 20) retarded. About 20 percent are "moderately" (I.Q. of 36-51) retarded and the remaining 10 percent are either "mildly" retarded (I.Q. of 52-69) or "borderline" (I.Q. over 69). See Garrity v. Gallen, 522 F.Supp. 171, 177 n.18, 180 (D.N.H.1981).

In 1978, six mentally retarded residents of LSS brought a class action in the district court charging that the conditions at the school violated the constitutional and statutory rights of the residents. Freda Smith, as the parent of a retarded child who had resided at LSS, and the DDAC, as an amicus, were involved in this suit, which resulted in a broad remedial order by the district court ⁴ to rectify a number of found violations. As a part of this order, the district court authorized plaintiffs' attorneys (New Hampshire Legal Assistance) to enter LSS in order to monitor compliance. The order also required LSS to institute guardianship proceedings for many residents and to make major changes in its educational and community placement policies. See generally Garrity v. Gallen, supra.

During and after this lawsuit, the number of visitors to LSS's buildings-particularly lawyers and investigators-vastly increased. Among the frequent visitors were a law student and staff attorney employed by DDAC. Lacking any formal rules regarding visitors of this or of any other sort, LSS formulated a policy in the fall of 1980 of requiring all visitors to report initially to the reception area (lawyers had formerly been going directly to residential buildings and mixing freely with residents). At the reception area, lawyers were required to show authorization from a court, a guardian, or the resident they wished to visit. Any complaints and appeals regarding denials of a visit were to be directed to the state Attorney General's office.

At DDAC's request, these initial, internally developed rules were expanded and codified in a series of draft regulations progressively issued in May, July and December of 1981 and culminating in formal state rulemaking and final regulations issued in February of 1982. The DDAC and Freda Smith filed this lawsuit challenging LSS visitation policies while this rulemaking process was still underway, and before it was completed. The district court had before it only a preliminary draft of the rules, dated July 17, 1981, at the time it issued the opinion which is the subject of this appeal. The December draft was later added to the record of this appeal in the apparent belief that it would aid us in our consideration of the case. However, the final and controlling version, issued in February 1982, is not before us. Appellees insist that the final regulations are not "substantially" different from earlier drafts although appellants contest this.

Insofar as we can tell from the draft regulations now in the record, the visitation rules expressly recognize a resident's right to be visited at all reasonable times unless the superintendent of LSS determines that a visit will "adversely affect" the resident, or unless the resident himself, a guardian, or a parent of a minor client declines to allow a visit. ⁵ Parents, guardians, court-appointed lawyers and any other person authorized by a court are permitted to visit freely with residents with whom they have ongoing relationships. In certain limited cases, ⁶ the superintendent is empowered to set visitation terms and conditions which he deems necessary to protect the client. Appeals from denials of visits are available through the LSS "complaint procedure." ⁷ The regulations in general appear to comport closely with New Hampshire statutory law, which grants to developmentally disabled persons "the right to be visited at all reasonable times" unless a visit would "adversely affect" them. N.H.Rev.Stat.Ann. § 171-A:14 III. There is nothing in the New Hampshire statutory law governing the rights of the developmentally disabled, however, which appears to specifically empower parents and guardians, as such, to deny a visit between the child or ward and an outside party.

Plaintiffs chiefly object to provisions in the regulations which give the parent or guardian of a minor or incompetent resident the ability to prevent a visit between the child or ward and a DDAC attorney. They also take issue with LSS's policies regarding so-called "clinically incompetent" individuals, and with the power of LSS to set terms and conditions on a visit (such as requiring that an LSS staff member be present at an interview). See note 6, supra. The individual plaintiffs claim independent constitutional and statutory rights to speak to DDAC attorneys without restrictions by LSS or their guardians. DDAC argues that, subject only to reasonable time, place, and manner restrictions, the DDAC attorneys should have unlimited access, as they apparently did prior to 1980, to both LSS residents and to their medical and other records. Only in this way, DDAC asserts, can it adequately discover when residents' rights are being violated and institute appropriate formal and informal proceedings to vindicate those rights as required by federal statute. See 42 U.S.C. § 6012; note 1, supra.

The district court did not finally determine the merits of any of these claims. It held instead that neither Freda Smith nor DDAC had "standing" to press these issues. We review, therefore, the matter of plaintiffs' standing, dealing first with Freda Smith's right to bring suit as "next friend" to LSS residents Harold Tuttle, Alice Graham, and Lillian Cooke.

II. Freda Smith as "Next Friend"

The district court found that Freda Smith, though an activist in LSS affairs who "probably knew" the individuals on whose behalf she sought to sue, ⁸ nevertheless lacked standing to sue on behalf of Tuttle, Graham, and Cooke. The court was particularly concerned that Smith had proceeded in this action "without receiving authority from the purported client." ⁹ We do not think the district court erred in so holding.

The Federal Rules of Civil Procedure provide for cases in which parties may sue by a "next friend" or guardian ad litem. See Fed.R.Civ.P. 17(c). Rule 17(c) reads as follows:

(c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

Since each of the three residents alleged to be represented by Freda Smith presents a slightly different situation, ¹⁰ we review Smith's status with respect to each resident individually, bearing in mind that the capacity of one to sue as a representative of another is usually determined by state law. 3A Moore's Federal Practice P 17.26 at 17-272, 17-273.

A. Harold Tuttle

Harold Tuttle...