Medley v. Ginsberg, Civ. A. No. 78-2099 CH.

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: COPENHAVER
• Citation: 492 F. Supp. 1294
• Docket Number: Civ. A. No. 78-2099 CH.
• Decision Date: 10 June 1980
• Parties: Macel MEDLEY, a child under the age of 18 years, who sues by her next friend, Nancy Barnhart, Executive Director, Kanawha-Putnam Association for Retarded Citizens, individually, and on behalf of all other persons similarly situated, Plaintiff, Sophia Lynn Booker, a child under the age of 18 years, who sues by her next friend, Rev. Steward Frazier, Intervenor Plaintiff, v. Leon GINSBERG, Commissioner, West Virginia Department of Welfare, John E. Burdette, II, Area Administrator, Area 17, West Virginia Department of Welfare, William (Bill) Curry, Social Service Supervisor, Area 17, West Virginia Department of Welfare, Mark Hudnall, Caseworker, Area 17, West Virginia Department of Welfare, George Pickett, M.D., Director, West Virginia Department of Health, John Barnette, Executive Director, Shawnee Hills Community Mental Health/Mental Retardation Center, Inc., and Roy Truby, Superintendent of Schools, Defendants.

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Macel MEDLEY, a child under the age of 18 years, who sues by her next friend, Nancy Barnhart, Executive Director, Kanawha-Putnam Association for Retarded Citizens, individually, and on behalf of all other persons similarly situated, Plaintiff,
Sophia Lynn Booker, a child under the age of 18 years, who sues by her next friend, Rev. Steward Frazier, Intervenor Plaintiff,
v.
Leon GINSBERG, Commissioner, West Virginia Department of Welfare, John E. Burdette, II, Area Administrator, Area 17, West Virginia Department of Welfare, William (Bill) Curry, Social Service Supervisor, Area 17, West Virginia Department of Welfare, Mark Hudnall, Caseworker, Area 17, West Virginia Department of Welfare, George Pickett, M.D., Director, West Virginia Department of Health, John Barnette, Executive Director, Shawnee Hills Community Mental Health/Mental Retardation Center, Inc., and Roy Truby, Superintendent of Schools, Defendants.

Civ. A. No. 78-2099 CH.

United States District Court, S.D. West Virginia, Charleston Division.

June 10, 1980.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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E. Gail Falk, Tobias Hirshman, Appalachian Research & Defense Fund, Inc., Charleston, W. Va., for plaintiffs

Chauncey H. Browning, Atty. Gen., of West Virginia, Richard L. Gottlieb, David R. Brissell, David P. Cleek, Asst. Attys. Gen., Michael A. Braun, Charleston, W. Va., for defendants.

MEMORANDUM ORDER

COPENHAVER, District Judge.

This matter is before the court on defendants' motion for summary judgment. Defendants' motion challenges the court's subject matter jurisdiction and raises the question of whether the doctrines of abstention and exhaustion of administrative remedies are applicable to this civil action.

Plaintiff Macel Medley and intervenor-plaintiff Sophia Lynn Booker sue individually and on behalf of a class of mentally retarded children and young adults to redress the deprivation of federal constitutional and federal and state statutory rights alleged to have occurred incident to their institutionalization by the State of West Virginia, including the State's alleged failure to make adequate provision for their social and educational needs. The court has certified the following class pursuant to Rule 23(b)(1) and (2) of the Federal Rules of Civil Procedure:

All persons under the age of twenty-three (23) years who suffer from mental retardation as that term is defined by W. Va. Code Ann. § 27-1-3 (1976), who are citizens of the State of West Virginia, who are unable to live in their homes due to lack of resources in their homes or in their home communities to fulfill their special needs arising from their mental retardation, and who are now or will in the future be institutionalized by reason of the failure of the named defendants, or their successors in office, to provide foster homes or other community facilities which can provide the required resources.¹

Plaintiffs seek injunctive relief enjoining defendants from maintaining plaintiffs in an institution or state hospital in lieu of providing plaintiffs with appropriate education, treatment and care, and services in a foster home or other community-based facility in their home communities. The named plaintiff and the intervenor plaintiff each seek $20,000.00 in damages and their costs. Plaintiffs also seek declaratory relief declaring that defendants, who are officials of the West Virginia Department of Welfare, the West Virginia Department of Health, the West Virginia Department of Education and the Shawnee Hills Community Mental Health and Mental Retardation Center, Inc., have violated various federal constitutional rights, federal statutory rights and state statutory rights of plaintiffs. The declaratory relief so sought pertains to educational, medical and custodial care and various other services alleged to be required to be provided to mentally retarded persons under the age of twenty-three years.

The rights of the mentally retarded have only recently become a subject of focused legislative and judicial concern. Consequently, the defendants' motion for summary judgment calls upon the court to explore a relatively undefined aspect of federal jurisdiction.

Plaintiffs' statutory and constitutional claims are presented to a significant extent in the context of four federal statutes.² The Developmentally Disabled Assistance and Bill of Rights Act (hereinafter, DDA-BRA),

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42 U.S.C. §§ 6001-6081, establishes federal grants for participating states to provide services for persons with developmental disabilities and enacts a bill of rights which enumerates minimum objectives and standards for the treatment and habilitation of developmentally disabled persons. See United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). The Education for All Handicapped Children Act (hereinafter, EHCA), 20 U.S.C. §§ 1401-1461, provides federal funds for participating states to ensure an appropriate education for each handicapped child and to guarantee each child and her or his parents procedural due process administrative safeguards. The Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794, establishes a comprehensive program for the provision of vocational services to the handicapped. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, proscribes discrimination against handicapped persons in programs which receive federal financial assistance. See Hairston v. Drosick, 423 F.Supp. 180, 184 (S.D.W.Va.1976). The Community Mental Health Center Act (hereinafter, CMHCA), 42 U.S.C. §§ 2689-2689aa, provides federal funds for the establishment and maintenance of community mental health centers in participating states

In addition to the alleged deprivation of rights afforded by these four federal acts, plaintiffs allege that they have been denied rights created by the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, as well as chapters sixteen, twenty-seven and forty-nine of the West Virginia Code.

I. Subject Matter Jurisdiction

In determining whether this court is vested with subject matter jurisdiction, it would appear that each of the following three theories merit consideration.

First, whether plaintiffs are afforded a private cause of action by implication for violations of the four federal statutes, pursuant to the analysis established in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), with jurisdiction predicated upon 28 U.S.C. § 1331 or 28 U.S.C. § 1343.

Second, whether plaintiffs may maintain a suit for the deprivations of the rights conferred by each of the four federal statutes pursuant to the remedy created by 42 U.S.C. § 1983,³ with jurisdiction afforded either by its jurisdictional counterpart, 28 U.S.C. § 1343,⁴ or by 28 U.S.C. § 1331.

Third, assuming it is found that section 1983 provides a remedy for deprivations of the rights afforded by each of the four federal statutes, whether the court may maintain jurisdiction over the claims arising under those statutes as federal claims pendent to plaintiffs' constitutional claims pursuant to the rationale of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), with jurisdiction over plaintiffs' constitutional claims being predicated upon 28 U.S.C. § 1331 or 28 U.S.C. § 1343.

A.

The first theory, based on the Cort v. Ash analysis, would require the examination of each of the four federal statutes just noted to determine whether Congress intended a private cause of action, even though not expressed, to exist for violation of each such statute. See, e. g., Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). This theory arises from "the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose." J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964). For the reasons expressed in the discussion which follows, plaintiffs have stated a cause of action pursuant to section 1983 with respect to the federal statutory claims alleged and jurisdiction is afforded by section 1343. Thus, although this first

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theory is potentially applicable to the case at bar,⁵ it is not considered further

B.

Turning to the second and third theories noted, the court must first determine whether, as contended by defendants, the United States Supreme Court's decision in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), precludes plaintiffs from stating a claim for violation of the United States Constitution and the four federal statutes under section 1983 with jurisdiction predicated upon section 1343. In Chapman, the Court addressed the question previously reserved in Hagans v. Lavine, 415 U.S. 528, 533-34 n.5, 94 S.Ct. 1372, 1377-78 n.5 (1974), as to whether that portion of section 1343(3),⁶ which provides federal jurisdiction over actions to redress the deprivation under color of state law "of any right, privilege or immunity secured by the Constitution," should be construed as excluding supremacy clause claims. The supremacy clause states in pertinent part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S.Const. art. VI, § 2. At issue in Chapman was the variance of a state welfare regulation with the Social Security Act's Aid for Families With Dependent Children provisions.

By a plurality of its members, the Court held that the supremacy clause does not provide a right secured by the Constitution in the nature of "equal rights" or "civil rights" as those terms are used in section 1343(3) and (4). In addition, the court held that section 1983 merely creates a remedy...