Burnham v. Department of Pub. Health of State of Ga.

• Decision Date: 04 August 1972
• Docket Number: Civ. A. No. 16385.
• Citation: 349 F. Supp. 1335
• Parties: A. J. BURNHAM et al., Plaintiffs, v. The DEPARTMENT OF PUBLIC HEALTH OF the STATE OF GEORGIA et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

349 F. Supp. 1335

A. J. BURNHAM et al., Plaintiffs, v. The DEPARTMENT OF PUBLIC HEALTH OF the STATE OF GEORGIA et al., Defendants.

Civ. A. No. 16385.

United States District Court, N. D. Georgia, Atlanta Division.

August 4, 1972.

Thomas H. Harper, Jr., Atlanta, Ga., for plaintiffs.

Arthur K. Bolton, Atty. Gen., Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, Ga., for defendants.

ORDER ON MOTIONS TO DISMISS

SIDNEY O. SMITH, Jr., Chief Judge.

In this class action plaintiffs request injunctive and declaratory relief pursuant to the provisions of 42 U.S.C. §§ 1981, 1983 and 28 U.S.C. § 1343(3) & (4). The parties-plaintiff, residents of Georgia, are all now or have been patients at one or more of the mental health institutions operated by the Department of Public Health of the State of Georgia (hereinafter "the Department"). The defendants are State officials responsible for the operation of such institutions, in varying degrees, and include the 18 member Board of Health which directs and controls the Department, the Director and Deputy Director of the Department, the Director of the Division of Mental Health and the Director of Institutions, Division of Mental Health. Also included as defendants are six superintendent/directors of individual institutions and two Judges of the Court of Ordinary.

The gravamen of the complaint is that the defendants are providing constitutionally inadequate diagnosis, care, and treatment to the plaintiffs and all those similarly situated. Additionally it is asserted that persons, as yet unknown, will be committed by the Judges of the Court of Ordinary to what amounts to penal or custodial status without the benefit of due process of law.¹

The plaintiffs' prayer asks this Court to declare (1) that patients confined to any state-owned or operated hospital or facility utilized for the diagnosis, care and treatment of mentally ill or mentally retarded persons are constitutionally entitled to adequate and effective treatment and (2) that each of the six institutions named in the complaint is unfit to provide constitutionally adequate and effective treatment for patients confined therein. Further, plaintiffs urge this Court to order the appropriate parties-defendant to provide constitutionally adequate treatment for any patient confined to the six named institutions, or to any other state-owned or operated facility. Plaintiffs also seek an injunction (1) preventing the defendants from operating any of the six named institutions in a manner that does not conform to the constitutionally required standards for diagnosis, care and treatment of mentally ill or mentally retarded persons and (2) prohibiting the named Judges of the Court of Ordinary and "members of their class" from committing any person to any of the six named institutions or any other state-owned or operated facility until such time as such institution or facility has made provisions for constitutionally adequate diagnosis, care, and treatment of patients. Lastly, plaintiffs ask this Court to order the appropriate defendants to prepare a comprehensive, constitutionally acceptable plan to provide adequate and effective treatment for all patients confined to state mental health facilities.

Prior to an examination of this case on its merits this Court deems some preliminary discussion appropriate. This Court is understandably concerned with the condition of that lamentably increasing number of human beings confined to mental health institutions. Certainly on moral grounds the proposition that the nation's mentally ill should be provided the best possible diagnosis, care and treatment is commendable. As citizens, we should be proud of any efforts to so provide for the needs of our fellow man. Those efforts include the enactment in 1969 by the Georgia General Assembly of legislation that has been heralded as one of the most advanced statutory treatments of the subject of hospitalization of the mentally ill in this nation. See Ga.Laws 1969, pp. 505-545; Ga. Code Ann., Chap. 88-5. The commitment to progress in the area of care for the mentally ill in Georgia is reflected in the increase from approximately $13,000,000.00 in 1960 to the $90,000,000.00 level in 1972 of funds provided by the General Assembly for the care of the mentally ill. Efforts have also been undertaken to decentralize and establish regional hospitals throughout the State by means of an extensive building program. Against this backdrop of effort, the Court considers the legal aspects of this matter.²

JURISDICTION PURSUANT TO 28 U.S.C. § 1343

The defendants assert that the complaint should be dismissed for want of jurisdiction over the subject matter in that it fails to raise a substantial federal question.

The courts have generally taken the view that 42 U.S.C. § 1983³ establishes the substantive right under which a complainant may proceed to vindicate a violation of his civil rights. Jurisdiction has been granted pursuant to 28 U. S.C. § 1343(3) to allow consideration of the alleged claim arising under 42 U.S.C. § 1983. Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958). Germane to both 28 U.S.C. § 1343 and 42 U.S.C. § 1983 is the requirement that the conduct complained of be exercised "under color" of state law. The courts, when considering claims under the two aforementioned sections have established the following two prerequisites: (1) that the defendant(s) act "under color" of state or local law and (2) that the plaintiff be subjected to a deprivation of some rights, privileges, or immunities secured by the constitution and laws of the United States. United States v. Classic, 313 U. S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Basista v. Weir, 340 F.2d 74 (3d Cir. 1965); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963); Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962).

The plaintiffs' complaint in the instant case is predicated squarely upon the proposition that the "adequacy" of the diagnosis, care, and treatment of patients in Georgia's mental health institutions is not merely a matter of State law⁴ but is a federal constitutional issue. Indeed under the second prerequisite noted above the plaintiffs are required to show a deprivation of a federal right in order to invoke jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. This Court is in agreement with plaintiff's counsel when he states, "It is true that in dealing with this issue, we are somewhat in the forefront of the law . . ."⁵ to the extent that a right to treatment for the mentally ill (if such a right indeed exists absent a statutory mandate) is a constitutionally required right.

As pointed out by the defendants, whether a State shall provide a particular governmental service, and if so in what amount (both qualitatively and quantitatively) are generally questions which address themselves exclusively to State law and do not raise federal constitutional issues. See Fullington v. Shea, 320 F.Supp. 500 (D.Colo.1970) (3 judge court), aff'd., 404 U.S. 963, 92 S. Ct. 345, 30 L.Ed.2d 282 (1970). Cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). In the matter now before the Court there is a law of the State of Georgia which requires treatment of those individuals confined to the State's mental health institutions.⁶ The argument herein is not that there is some sort of invidious discrimination based upon race or similarly prohibited criteria being practiced whereby an unequal distribution or application of the benefits of this State law is being rendered. Plaintiffs are directly challenging the "adequacy" of the treatment, care, and diagnosis being provided in the State's mental health institutions.⁷

The plaintiffs urge this Court, therefore, to declare the existence of a federal constitutional right to treatment (to encompass "care" and "diagnosis") for the mentally ill and to define the same. This Court can find no legal precedent for such a declaration and to the contrary finds persuasive authority compelling an opposite conclusion.⁸

The leading exponent of the declaration of a right to treatment for the mentally ill is Morton Birnbaum, M.D., LL. B., who for the past fifteen years has written a number of articles on the subject and has been instrumental in "law reform" litigation. Dr. Birnbaum himself has conceded that while such a right to treatment has been accepted by society, it has not been recognized as a federal constitutional right.⁹

Not every governmental function results in an individual right. See Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951); Niklaus v. Simmons, 196 F.Supp. 691 (D.Neb. 1961). Looking at an analogous area of recent great societal concern and importance, education, we find some instructive authority. In Flemming v. Adams, 377 F.2d 975, 977 (10th Cir. 1967), cert. denied, 389 U.S. 898, 88 S.Ct. 219, 19 L. Ed.2d 216 (1967), a claim that the right to a public education was secured by the United States Constitution was rejected as follows:

"Although the importance of education to our democratic society is obvious to all . . . we do not agree that the right to an education is among those rights guaranteed by the federal constitution."

See Peacock v. Riggsbee, 309 F.Supp. 542 (N.D.Ga.1970). While the 14th Amendment guarantees equal protection of the laws, it does not create any new rights in itself.

With the exception of a recent Alabama decision discussed hereinbelow, the courts have not gone beyond recognizing a statutory right to treatment in those jurisdictions where such a right exists. The Court of Appeals for the District of Columbia, in a series of split decisions, has held that under federal statutes regulating the hospitalization of the mentally ill in Washington, D.C., (tantamount to state laws in the District) patients there can obtain judicial review of the adequacy of their treatment, including the question of whether the least restrictive course of treatment available is being utilized. See ...