Cushing v. Moore
| Citation | 970 F.2d 1103 |
| Decision Date | 27 July 1992 |
| Docket Number | D,No. 1568,1568 |
| Parties | 3 NDLR P 136 Lawrence CUSHING; Regina Belser; Alan Howard; Susan Allegra; Geri Randolph; Jane Doe; Marietta Lugo; Joseph Krzemenski; Robert Gamari, individually and on behalf of all those similarly situated, Plaintiffs-Appellants, v. Frank MOORE; William H. Benton; Essie Mariah M. Carstarphen, and as Directors, and or Supervisors of Whitney M. Young Jr. Health Center, Inc.; doing business as Whitney M. Young Jr. Rehabilitation Clinic; Whitney M. Young Jr. Health Center, Inc., doing business as Whitney M. Young Jr. Rehabilitation Clinic, Defendants-Appellees. ocket 92-7194. |
| Court | U.S. Court of Appeals — Second Circuit |
Arthur J. Siegel, Albany, N.Y. (Bond Schoeneck & King, Hermes Fernandez, of counsel), for plaintiffs-appellants.
Daniel J. Stewart, Albany, N.Y. (Dreyer, Boyajian & Tuttle, of counsel), for defendants-appellees.
Before: PRATT and ALTIMARI, Circuit Judges, and KELLEHER, District Judge, for the Central District of California, sitting by designation.
Plaintiffs appeal from a judgment of the United States District Court for the Northern District of New York, Neal P. McCurn, Chief Judge, that dismissed their claims for lack of subject-matter jurisdiction.
In August 1991 the clinic was faced with two serious incidents that threatened to compromise its take-home methadone program. First, the FDA cited the clinic's take-home program for various deficiencies. Shortly thereafter, police arrested four patients of the clinic, some of whom were charged with possession and/or sale of methadone. See Cushing, 783 F.Supp. at 729-31. In response, the clinic developed a new take-home treatment policy, the implementation of which caused several plaintiffs to lose their take-home treatment privileges. By this action plaintiffs seek both reinstatement of their take-home privileges and damages for the clinic's having suspended those privileges.
The program itself is authorized by federal and New York State methadone regulations. Because methadone is a narcotic whose effects are milder than those of other narcotics, it is often used to treat heroin addiction and other forms of drug dependency. By administering methadone the clinic first removes the patient's primary addiction; then the clinic maintains the substituted dependency on methadone so as to permit the patient to function productively in society; finally, the clinic seeks to cure the methadone addiction and thus enable the patient to lead a drug-free life. See 21 C.F.R. § 291.501; see also Cushing, 783 F.Supp. at 729. In federally-regulated methadone programs, the drug is administered in oral form only. See 21 C.F.R. § 291.505(d)(6)(iii).
The regulations require that heroin-addicted patients, at the beginning of their treatment, receive medication at the clinic on a daily basis--initially, six days each week, with the clinic providing dosage to be taken home for the seventh day. Based on the patient's progress, the regulations permit the clinic to reduce the number of days on which the patient must appear in person to receive medication. When a patient has progressed sufficiently, he or she need appear at the clinic only once each week for a refill and examination.
State and federal regulations condition the receipt of take-home treatment on whether, among other things, the patient has spent a certain amount of time in the program and has made "[p]rogress in maintaining a stable lifestyle", N.Y.Comp.Codes R. & Regs. tit. 14, § 1040.11(a)(3) (1984), which includes "employment, school attendance or other appropriate activity." Id., § 1040.11(a)(3)(v). We have previously determined that the particular state regulation that imposes an employment requirement for the provision of all take-home treatment is not preempted by the less stringent federal regulation, which imposes an employment requirement only where a patient is permitted to take home a six-day supply of methadone. See Luna v. Harris, 888 F.2d 949, 954 (2d Cir.1989).
After receiving the FDA's criticism and experiencing significant consternation over the arrest of some of its patients, the clinic adopted a new policy for take-home treatment that included an employment requirement as one factor in its determination of whether a patient was eligible for the take-home program. The relevant provision addresses
[w]hether the patient's employment status, lifestyle and living arrangements are secure enough to assure that the take-home medication will be taken by the patient and not diverted for illicit use.
Under the new policy, five of the named plaintiffs--Regina Belser, Alan Howard, Susan Allegra, Joseph Krzemenski and Robert Gamari--were terminated solely because they were unemployed. See Cushing, 783 F.Supp. at 731. The gravamen of their claim under the rehabilitation act is that because the clinic terminated their take-home methadone treatment based on Plaintiffs moved for a preliminary injunction ordering the clinic to restore their take-home medication. From the beginning, Chief Judge McCurn expressed concern about his jurisdiction and, although he proceeded with the motion for preliminary injunction, he also invited briefs from counsel on the question of whether or not federal jurisdiction existed for this case. Ultimately he concluded that he had no jurisdiction, and he dismissed the complaint without ruling on the injunction motion. As discussed below, we think the district court was almost, but not quite, correct.
their unemployment, and because their unemployment was, in turn, a result of their handicap, the clinic's decision to terminate their take-home medication was based "solely" on their handicap in violation of the act.
When a court determines that no jurisdiction exists, "the test is whether the complaint on its face, without resort to extraneous matter, is so plainly insubstantial as to be devoid of any merits and thus not presenting any issue worthy of adjudication." Giulini v. Blessing, 654 F.2d 189, 192 (2d Cir.1981); see also Town of West Hartford v. Operation Rescue, 915 F.2d 92, 100 (2d Cir.1990). We therefore must carefully review the complaint in this case.
The complaint set forth 19 claims advanced on behalf of nine named plaintiffs; it also sought class-action status on behalf of "all those similarly situated". For jurisdictional purposes, the claims can be divided into three groups.
Fourteen of the nineteen claims are based on state law and therefore could be entertained either under diversity-of-citizenship jurisdiction, see 28 U.S.C. § 1332, or under the court's supplemental jurisdiction. See 28 U.S.C. § 1367. Federal diversity jurisdiction was sought based on the allegations that plaintiffs Cushing and Randolph were citizens of Vermont and that plaintiff Howard was a citizen of Massachusetts. The district court properly rejected this basis for jurisdiction, because 28 U.S.C. § 1332 requires complete diversity between all plaintiffs and all defendants, and as appears from paragraph 7 of the complaint, plaintiffs Allegra, Belser, Lugo, Krzemenski, and Gamari all are citizens of New York, as are the defendants. See Cushing, 783 F.Supp. at 732-33.
Supplemental jurisdiction could be exercised only if some other, related claim provides a proper basis for federal jurisdiction. The district court may in its discretion decline to exercise its supplemental jurisdiction if "the district court has dismissed all claims over which it has original jurisdiction". 28 U.S.C. § 1367(c). We return to this problem at the end of this opinion.
Four of the claims are based on alleged violations of federal regulations that govern the defendants' methadone clinic. The district judge dismissed these claims, because he found that congress had established no federal private cause of action, either expressly or by implication, for violation of the methadone regulations. We adopt Chief Judge McCurn's careful analysis of this issue as set forth in his opinion, see Cushing, 783 F.Supp. at 735-39, and therefore affirm his dismissal of those claims that were based on alleged violations of federal regulations.
The only other claim raising a plausible basis for federal jurisdiction is the third claim for relief, which was asserted on behalf of plaintiffs Belser, Howard, Allegra, Krzemenski, and Gamari. The allegations underlying that claim are meager. The claim itself is set forth in two paragraphs, the first of which, paragraph 82, incorporates the prior allegations of the complaint. The second, paragraph 83, contains what for our purposes are the operative allegations. It reads as follows:
83. Defendants' decision to terminate take-home medication for persons with handicaps is contrary to and in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 706, 794.
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