Miener v. State of Mo., 79-1050C(2).

• Decision Date: 25 January 1980
• Docket Number: No. 79-1050C(2).,79-1050C(2).
• Citation: 498 F. Supp. 944
• Parties: Terri Ann MIENER, etc., Plaintiff, v. STATE OF MISSOURI et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

498 F. Supp. 944

Terri Ann MIENER, etc., Plaintiff, v. STATE OF MISSOURI et al., Defendants.

No. 79-1050C(2).

United States District Court, E. D. Missouri, E. D.

January 25, 1980.

M. Peter Fischer, J. Peter Schmitz, Mary Stake Hawker, Schmitz & Fischer, St. Louis, Mo., for Special School District of St. Louis County, Mo., The Board of Education of Special School District of St. Louis County, Mo., Allan G. Barclay, Gerald K. Braznell & Gerald B. Hansen, Directors of Special School District of St. Louis County, Mo.; Thomas E. Smith, Supt. of Schools of Special School District of St. Louis County, Mo.

William F. Arnet, Joel S. Wilson, J. Kent Lowry, Asst. Attys. Gen., State of Missouri, Jefferson City, Mo., Simon Tonkin, Asst. Atty. Gen., St. Louis, Mo., for State of Missouri, Joseph Teasdale, Dept. of Elementary & Secondary Education, Arthur L. Mallory, Dr. Leonard Hall, Department of Mental Health of State of Missouri, Norman Tice; Dr. Beverly Wilson, Mr. John Twiehaus, Dr. Milton Fujita.

Carl I. Katzen, St. Louis, Mo., for State of Mo. Dept. of Mental Health as to allegations of Count IV only.

Leo M. Newman, Newman & Bronson, St. Louis, Mo., for State of Missouri.

Albert J. Haller, Steven L. Leonard, Cupples, Cooper & Haller, Inc., Clayton, Mo., for plaintiff.

MEMORANDUM

NANGLE, District Judge.

This case is now before the Court on motions to dismiss of various defendants. This cases arises out of the tragic circumstances of a young girl's serious physical and emotional handicaps and her concerned father's attempts to obtain satisfactory treatment and education. Plaintiff seeks monetary, injunctive and declaratory relief due to defendants' alleged violations of the Education of the Handicapped Act, 20 U.S.C. § 1401 et seq. Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff also seeks damages for the allegedly tortious conduct of two defendants.

Named as defendants are numerous individuals and political bodies and agencies: the State of Missouri and its Chief Executive Officer, Governor Joseph Teasdale; the Missouri Department of Elementary and Secondary Education, and its Commissioner, Arthur Mallory, and Assistant Commissioner, Dr. Leonard Hall; the Missouri Department of Mental Health, its acting Director, Dr. Beverly Wilson, and the Chairman of the State Mental Health Commission, Norman Tice; the acting Superintendent of the St. Louis State Hospital, John Twiehaus, and the former Medical Director of the Youth Center at that Hospital, Dr. Milton Fujita; and the Special School District of St. Louis County, Missouri, its Board of Education, its Directors, Allan Barclay, Gerald Braznell, and Gerald Hansen, and its Superintendent of Schools, Thomas Smith.

This suit was initially filed on August 27, 1979, and a preliminary injunction was requested. The complaint alleged that plaintiff, a seventeen year old girl, was then a voluntary resident of the Youth Center of the St. Louis State Hospital, suffering from serious physical and emotional disorders. The complaint further alleged that defendants were discriminating against plaintiff because of those disorders, in violation of Section 504 and 42 U.S.C. § 1983, and failing to provide plaintiff with a free, appropriate public education, in violation of the Education of the Handicapped Act. A pendent state claim was also alleged, claiming that defendants Twiehaus and Fujita had failed in their duty to provide a reasonably safe environment for the residents at the Youth Center, resulting in frequent physical attacks upon plaintiff by residents and staff at the Center.

It has been clear from the outset that plaintiff's father's primary concern has been to ensure that plaintiff is provided adequate treatment, education, and care. To this end, a mandatory preliminary injunction was requested which would direct the defendants to place plaintiff in the Brown School in Austin, Texas, and pay for her care there pending the outcome of this litigation. Plaintiff alleged that the Brown School was an adequate facility which had agreed to accept her as a patient, and that there were no such facilities in the State of Missouri.

This Court met with the parties on October 18, 1979. At that time it was decided that a hearing on the merits would be postponed in order to allow plaintiff to pursue the administrative remedies set out in the Education of the Handicapped Act, its accompanying regulations, and the state legislation implementing the Act. 20 U.S.C. § 1401 et seq.; 45 CFR § 121a.1 et seq.; and § 162.945 et seq., RSMo (1979). This Court indicated that, if plaintiff was not satisfied that she was being offered an appropriate educational plan after the exhaustion of these administrative procedures, an appeal would lie to this Court pursuant to 20 U.S.C. § 1415(e)(2). At that time, a preliminary injunction was deemed unnecessary because all indications were to the effect that the impetus of litigation had caused defendants to vigorously protect plaintiff's welfare.

Since that time, the parties have been before this Court on several occasions to report on the progress of the administrative process. On December 31, 1979, this Court entered an order directing that, pending the final outcome of the administrative process, the Individual Education Plan developed by the State Hospital and Special School District personnel be implemented. Costs of this plan were to be paid on an interim basis, with a determination of ultimate responsibility to be made in the future.

It is now appropriate to deal with the numerous motions to dismiss which have been filed by the various defendants in this case. Two grounds raised by defendants will not be dealt with at this time: plaintiff's failure to exhaust administrative remedies under the Education of the Handicapped Act and the relative responsibilities of the various school districts involved. The former is moot in light of plaintiff's current utilization of the administrative process; the latter will be dealt with upon the filing of subsequent motions for summary judgment specifically addressed to this issue.

Defendants have raised numerous grounds for dismissal of portions of this lawsuit, but several key issues immediately stand out, and the resolution of these issues moots many of the remaining arguments. Plaintiff claims in Counts II and III that she has been discriminated against due to her handicapped condition with respect to access to public education and treatment. These counts raise the issues of whether Section 504 may be utilized to support a private right of action for equitable relief and damages, and, if so, whether plaintiff must first exhaust her administrative remedies.

Section 504 provides, in pertinent part, as follows:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .

The Department of Health, Education and Welfare promulgated regulations, in effect during the times relevant to this litigation, which implemented this statutory prohibition of discrimination against the handicapped. See 45 CFR Part 84. An enforcement scheme was set up which coincided with the enforcement provisions of Title VI of the Civil Rights Act of 1964 ("Title VI"). 42 U.S.C. § 2000d et seq.; 45 CFR §§ 80.6 through 80.11 and 45 CFR Part 81; 45 CFR § 84.61. This scheme of enforcement was undoubtedly prompted by the Congressional intent that enforcement of Section 504 would be through means similar to those employed in the implementation of Title VI. N.A.A.C.P. v. Medical Ctr., Inc., 599 F.2d 1247, 1258 (3rd Cir. 1979).

Prior to the adoption of these regulations, it was generally held that Section 504 could be enforced through a private cause of action. Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Davis v. Southeastern Comm. College, 574 F.2d 1158 (4th Cir.), rev'd on other grounds 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). The Supreme Court found it unnecessary to rule on this issue in the only case involving Section 504 which has come before it. See, Davis, supra, at 404 n.5, 99 S.Ct. 2361.

The adoption of implementing regulations has cast doubt upon these holdings, however. In Lloyd, the court stated that, once procedural enforcement regulations were issued to implement Section 504, the private cause of action should be limited to judicial review of this administrative process. Lloyd, supra at 1286 n.29. See, also Davis, 574 F.2d at 1163 n.9. The cases which arose subsequent to the issuance of these regulations are not in agreement as to whether a private right of action still exists at all, and, if so, whether administrative remedies must first be exhausted. N.A.A. C.P., supra; Whitaker v. Board of Higher Ed. of City of New York, 461 F.Supp. 99 (E.D.N.Y.1978). Cf. Sherer v. Waier, 457 F.Supp. 1039 (W.D.Mo.1977); Crawford v. University of North Carolina, 440 F.Supp. 1047 (M.D.N.C.1977); Doe v. New York University, 442 F.Supp. 522 (S.D.N.Y.1978); Doe v. Calautti, 454 F.Supp. 621 (E.D.Pa.), aff'd 592 F.2d 704 (3rd Cir. 1979).

This Court must conclude that as far as suits to enforce Section 504 are concerned, as opposed to suits seeking damages for alleged violations of that section, a private right of action exists without regard to prior resort to administrative remedies.

The Supreme Court recently dealt with a similar issue in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), in which Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq., was involved. In its analysis of the issue, the Supreme Court began...