Duffany v. Van Lare

• Decision Date: 22 May 1973
• Docket Number: No. 72-CV-238.,72-CV-238.
• Citation: 373 F. Supp. 1060
• Parties: Joan DUFFANY et al., Plaintiffs, v. Barry VAN LARE, Acting Commissioner of the New York State Department of Social Services, and Haswell P. Brayton, Jr., Commissioner of the Jefferson County Department of Social Services, Individually and in their official capacities, Defendants.
• Court: U.S. District Court — Northern District of New York

373 F. Supp. 1060

Joan DUFFANY et al., Plaintiffs, v. Barry VAN LARE, Acting Commissioner of the New York State Department of Social Services, and Haswell P. Brayton, Jr., Commissioner of the Jefferson County Department of Social Services, Individually and in their official capacities, Defendants.

No. 72-CV-238.

United States District Court, N. D. New York.

May 22, 1973.

John R. Kennedy, Legal Services-Health and Nutritional Development, Rochester, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., of N. Y., Albany, for defendant, Barry Van Lare; Joseph T. Hopkins, Asst. Atty. Gen., James H. Sweeny, Deputy Asst. Atty. Gen., of counsel.

Stanford H. Waite, Watertown, for defendant, Haswell P. Brayton, Jr.

PORT, District Judge.

Memorandum-Decision and Order

This case is before the court on defendants' motion to dismiss the complaint on the grounds, inter alia, of failure to state a claim upon which relief can be granted and lack of jurisdiction.

The plaintiffs in a twenty-six page complaint alleging eight separate causes of action seek the following relief:

1. An order that the action be maintained as a class action;

2. The issuance of a permanent injunction ordering the State Commissioner of Social Services:

(a). to establish or cause to be established by the Jefferson County Department of Social Services "a fee structure, which is adequate and designed to enlist a sufficient number of dentists of that County to actively participate in the State Medicaid Program, so that * * * dental care and services to the extent they are available to the general population" will be available to the plaintiffs and those similarly situated in Jefferson County;

(b). to establish or cause to be established a similar fee structure with reference to each local Welfare District throughout the State;

(c). "to insure reasonably prompt dental care and services are available to named plaintiffs" and members of the class, situated in Jefferson County, within their own respective community "when such services are available to others";

(d). to provide the same relief statewide;

(e). "to immediately review and exercise general supervision over the administration of the State Medicaid Program by the Jefferson County Department of Social Services to insure that dental care and services are available to named plaintiffs" and members of the class, situated in Jefferson County;

(f). to provide the same relief statewide;

3. The issuance of a permanent injunction ordering the Commissioner of the Jefferson County Department of Social Services:

(a). to establish a fee structure as indicated in 2(a) above to the extent that the State Commissioner of Social Services has not done so;

(b). to immediately "make available dental care and services to named plaintiffs" and members of the class, "situated in Jefferson County either by contracting with the dentists of Jefferson County or by the department directly furnishing such services itself."

The plaintiffs in a preliminary statement allege in summary that they seek an order requiring the defendants to enforce and obey the provisions of the Social Security Act, 42 U.S.C. § 1396 et seq.; the Code of Federal Regulations; the Handbook of Public Assistance Administration, Supplement B; the New York State Social Services Law; and the New York State Plan for Medical Assistance providing for the availability of dental care and services to all persons who are eligible and qualify under New York State Medical Assistance Program commonly known as Medicaid.

Nowhere is it alleged that any of the statutes or regulations are constitutionally infirm.

THE PARTIES

The defendants are the Commissioner of Social Services of New York¹ and the Commissioner of Social Services of Jefferson County.

The 29 plaintiffs are the mothers and children of four families receiving ADC, and the parents and children of a fifth family receiving home assistance. All are enrolled under Medicaid, and all live in or near the City of Watertown, New York in Jefferson County.

THE COMPLAINT

The complaint in substance alleges that one or more plaintiffs in each family needed dental care; that dentists in the City of Watertown were called to obtain an appointment and were told the patients were under Medicaid; that appointments were not given. For example, it is alleged that one of the Duffany children was advised by a school nurse in January, 1972 of the need for dental work and two others were so advised in February, 1972. In January, Mrs. Duffany alleges she called all of the Watertown dentists but was unable to obtain an appointment. Thereafter, one of the children was taken to Carthage, New York by a probation officer and was treated by a dentist there. Two more calls to dentists in Watertown on April 6, 1972 she alleges were also unproductive. She alleges generally that no dental services were obtainable.

The first designated cause of action alleges that under Social Security law, regulations and a HEW Handbook, the State Social Services Commissioner has an obligation to insure that fees paid to dentists in Jefferson County under Medicaid are designed to enlist enough dentists so that dental services are available to Medicaid recipients at least to the extent such are available to the general population, that a maximum reimbursement schedule established by state regulation² and utilized for payment is inadequate and not so designed, and that as a result, dentists are not available in sufficient numbers.

The second cause of action alleges the State Commissioner's failure to insure adequate fees, statewide.

The third alleges Jefferson County's Commissioner's failure to set adequate rates as he is required to do by certain state law provisions.

The fourth cause of action alleges state commissioner failures to insure Jefferson County adherence to other federal statutory and regulatory requirements concerning promptness of care and avoidance of requiring recipient travel to get care.

The fifth cause of action alleges the same failure statewide on the State Commissioner's part.

The sixth cause of action alleges the Jefferson County Commissioner's failure, in substance, to abide by state law requirements to provide care by alternate means, such as by contracting for dental services.

At oral argument, plaintiff characterized this cause of action, relating to a general duty of the county under state law to provide care, and the third cause of action, relating to a specific duty of the county under state law to set adequate fees, as nonfederal pendant jurisdiction matters.

The seventh cause of action alleges a failure of the State Commissioner to adequately supervise Jefferson County Medicaid as allegedly required by quoted provisions of New York Law, and a general reference to the Social Security Act and state plan. The eighth and final cause of action alleges this same failure to require the furnishing of adequate dental care and services, statewide.

All claims are based on statutory or regulatory violations. Plaintiffs make no constitutional claims.

JURISDICTION

Plaintiffs assert three bases for subject matter jurisdiction: 1) civil rights —28 U.S.C. § 1343(3) & (4) and 42 U.S. C. § 1983; 2) federal question—28 U.S. § 1331 (arising under laws of the U. S. and matter in controversy in excess of $10,000.00); and 3) suits arising under Acts of Congress regulating commerce—28 U.S.C. § 1337.

1) Civil Rights Jurisdiction

Plaintiffs' place greatest reliance on 28 U.S.C. § 1343(4), and 42 U.S.C. § 1983.³ The plaintiffs find unquestioned support for their claim of jurisdiction under the civil rights statutes. Unfortunately, the arbiter entertains doubts where the advocate enjoys certitude.

Jurisdiction is not claimed to be based on Title 28 § 1343(3).⁴ They rely instead on subdivision 4 of that section. In a sort of boot strap operation, they contend that section 4 affords relief "under any Act of Congress providing for the protection of civil rights, including the right to vote."; they then find the necessary "Act of Congress" in 42 U.S.C. § 1983 since it provides a cause of action for "deprivation of any rights, privileges or immunities secured by the Constitution and laws" (italics added); the provisions of the Social Security Laws and the Regulations and Handbook issued thereunder are then engrafted into section 1983 as the "and laws."

The plaintiffs argue that § 1983 is "an Act of Congress providing for the protection of civil rights" which affords them jurisdiction under subdivision 4 of § 1343.⁵

They further contend that no constitutional claims need be raised. To further bolster their claim, they contend that Lynch v. Household Finance Corp.,⁶ by striking down the distinction between personal and property rights, brings the Social Security Act, 42 U.S.C. § 1396 et seq., within the meaning of § 1983.⁷

This contention is flawed because "the Social Security Act is not one `providing for the protection of civil rights.'",⁸ and "reliance on 28 U.S.C. § 1343(4) is foreclosed, so far as this circuit is concerned."⁹

Carrying the plaintiff's contention to its logical conclusion, coupling the alleged deprivation of rights, of any nature, under any Act of Congress with the "and laws" in § 1983, ipso facto, affords jurisdiction under § 1343(4). In summary, the plaintiff contends that by tying the Social Security Act in with § 1983, jurisdiction is afforded under § 1343(4) which concededly would not exist on the basis of the Social Security Act provisions alone. I disagree.

Analysis of the provisions and background of both §§ 1343(4) and 1983 reveals their inability to support jurisdiction in a case such as this, either alone, or as plaintiffs' argue here, in combination.

Subdivision 4 of § 1343 was passed in 1957 as part of the Civil Rights Act of that year. Section 1983 has its source some 86 years prior, in the Civil Rights Act of 1871. The Medicaid provisions of the Social Security Act arrived in 1965, some eight years...