Morrow v. Bassman, C-3-79-260.

• Decision Date: 03 June 1981
• Docket Number: No. C-3-79-260.,C-3-79-260.
• Citation: 515 F. Supp. 587
• Parties: James David MORROW, Plaintiff, v. Scott BASSMAN et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

515 F. Supp. 587

James David MORROW, Plaintiff, v. Scott BASSMAN et al., Defendants.

No. C-3-79-260.

United States District Court, S. D. Ohio, W. D.

June 3, 1981.

COPYRIGHT MATERIAL OMITTED

James David Morrow, pro se.

William H. Wolff, Sr., Dayton, Ohio, Henry A. Arnett, Columbus, Ohio, for defendants.

RICE, District Judge.

DECISION AND ENTRY ON OUTSTANDING MOTIONS; DEFENDANTS, KREACHBAUM AND CENNAMO, DISMISSED AS PARTY DEFENDANTS; CERTAIN DUTIES REQUIRED OF PLAINTIFF AND REMAINING DEFENDANTS WITHIN STATED PERIOD OF TIME; CONFERENCE SET

I. BRIEF STATEMENT OF THE CASE

Plaintiff brings this action under 42 U.S.C. § 1983, alleging that he has been unlawfully denied food stamp and ADC welfare benefits.

Specifically, Plaintiff alleges that the individual Defendant Bassman, a caseworker for the Montgomery County Welfare Department (MCWD), unlawfully denied Plaintiff's application for food stamp assistance on February 14, 1978, and that, following a "successful" appeal of that denial, Bassman continued to deny food stamp assistance to Plaintiff until Plaintiff was no longer eligible to receive same (i. e., when Plaintiff became employed in August, 1978). Plaintiff also alleges that the individual Defendant Kreachbaum, a hearing officer for the Ohio Department of Public Welfare (ODPW), has unlawfully failed or refused to enforce his decision on Plaintiff's appeal from the denial of food stamp assistance.

Further, Plaintiff alleges that the individual Defendant Lauer, an MCWD caseworker, unlawfully denied Plaintiff's application for ADC assistance on March 14, 1978, and that, following a "successful" appeal of that denial, Lauer continued to deny ADC assistance to Plaintiff until Plaintiff became ineligible. Plaintiff also alleges that the individual Defendant Cennamo, an ODPW hearing officer, has unlawfully failed or refused to enforce his decision on Plaintiff's appeal from the denial of ADC assistance.

Plaintiff currently seeks leave to amend his complaint to allege an unlawful delay or delays between the time at which Plaintiff first sought to apply for food stamp assistance, the time at which Plaintiff was permitted to apply, and the time at which the decision on his application for food stamp assistance was rendered by the Defendant Bassman. Plaintiff also seeks to add the MCWD, ODPW, and Montgomery County Commission (MCC) as parties-Defendant, for their participation or concurrence in the conduct of the individual Defendants.

Plaintiff demands declaratory relief and money damages in excess of $10,000.00.

II. PROCEDURAL POSTURE

There are six motions outstanding at the present time, to wit:

1. The motion to dismiss by the individual Defendants Kreachbaum and Cennamo for reason that Plaintiff's complaint (as unamended) fails to state a claim against them, in that: (a) the complaint fails to allege deprivation of a federal right; (b) state hearing officers have no duty to enforce their decision; and (c) state hearing officers are absolutely immune from liability;

2. The motion for summary judgment (after answer) by the individual Defendants Bassman and Lauer for reason that there is no set of genuinely disputed or disputable facts presented upon which they might be held liable, in that: (a) Bassman's initial and post-appeal denials of food stamp benefits were lawful, due to Plaintiff's own failure to verify statements in the application for benefits; and (b) Lauer's initial denial of ADC assistance for Plaintiff was affirmed on appeal, and the post-appeal denial was in accordance with the order following reconsideration of the appeal;

3. The motion to strike Plaintiff's "amendment to memorandum (by Bassman and Lauer) contra the Bassman/Lauer motion for summary judgment" (motion to strike being denominated as "reply to Plaintiff's amendment") for reason that said amendment was not timely filed and was filed without leave of court;

4. Plaintiff's motion for leave to amend his complaint in the manner previously described 5. Plaintiff's motion for summary judgment in his favor on the amended complaint; and

6. The motion to dismiss by the MCC and MCWD (to be added as parties-Defendant in the amendments to the complaint) for reason that they have not been served as required by law, are not subject to vicarious liability, and are immune from an award of money damages.

III. JURISDICTIONAL PERIMETERS

Before proceeding to the merits of the individual motions, this Court must inquire into its subject matter jurisdiction over the range of potential claims which Plaintiff may be seeking to assert under the allegations in his complaint.

In paragraph 3 of the complaint, Plaintiff alleges that his cause "arises under the Constitution of the United States, including but not limited to the Fourteenth Amendment; the Civil Rights Acts, including but not limited to 42 U.S.C. § 1983; the Constitution of the State of Ohio; the laws of the State of Ohio; the Ohio Public Assistance Manual; and, the Food Stapm sic Manual." In paragraph 4, Plaintiff alleges that "Jurisdiction is conferred upon this Court by 28 U.S.C. §§ 1331, 1343(1)(2)(3); 28 U.S.C. §§ 2201 and 2202." Sections 2201 and 2202 provided the Court with jurisdiction to render declaratory and ancillary relief if the case involves a controversy otherwise within the Court's jurisdiction. Therefore, it must first be determined whether this Court has jurisdiction under sections 1331 or 1343(1)-(3).

Inasmuch as no class-based discriminatory animus or conduct by Defendants is alleged, and no other colorable infringement on equal protection rights can be construed from the complaint, no cause of action is stated under 42 U.S.C. § 1985. Therefore, this Court cannot exercise jurisdiction under section 1343(1)-(2). Cf. Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1583, 51 L.Ed.2d 794 (1977). The same defect precludes this Court from exercising jurisdiction herein under that part of section 1343(3) which provides jurisdiction in cases redressing the deprivation of rights secured "by any Act of Congress providing for equal rights." The remaining possibilities are that this Court might have jurisdiction (a) under that part of section 1343(3) which provides for jurisdiction in cases redressing the deprivation "of any right ... secured by the Constitution of the United States," or (b) under section 1331, which establishes this Court's general federal question jurisdiction.

It does not appear to unduly restrict or otherwise do violence to the unamended complaint (such as it is) to suggest that Plaintiff's 14th Amendment claim can be framed as follows: The denial of food stamp and ADC benefits was the result of conduct by the Defendants inconsistent with existing state and federal laws and regulations governing the issuance of such benefits and, therefore, amounted to a denial of due process in violation that of clause in the 14th Amendment.

There is no question that a claim of deficient procedure would be insufficient for jurisdictional purposes under section 1343(3), if the procedural defects in disposition of a welfare application were predicated solely on inconsistency between the procedures and standards followed by a welfare department and those required by statute or regulations promulgated thereunder. In such case, the claim would not be based upon rights "secured by the Constitution," and (as indicated above) not in respect of federal statutes "providing for equal rights." Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). Where, however, the defects are predicated on inconsistency with the minimum procedures that are constitutionally required, a sufficient constitutional claim would be presented for purposes of section 1343(3) jurisdiction. Serritella v. Engelman, 339 F.Supp. 738, 745-46 (D.N.J.1972). In other words, in order for this Court to have jurisdiction over the present cause under section 1343(3), the deprivation of procedural rights at issue must be in the nature of noncompliance with that which the constitution demands, and not merely predicated upon inconsistency with federal or state procedural statutes or regulations.

As a constitutional generality, it has been said that "the quantum and quality of the process due in a particular situation depends upon the need to serve the purpose of minimizing the risk of error." Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) (rejecting lower court's requirement of various procedural safeguards in parole denial because they "would provide at best a negligible decrease in the risk of error"). In the context of preliminary and final denials of welfare benefits, it has been held that the requirements of due process are satisfied by written objective standards for eligibility, the opportunity to present an application indicating eligibility, a statement of reasons for preliminary denial of benefits, and an opportunity for meaningful administrative review prior to final denial. See, e. g. White v. Roughton, 530 F.2d 750 (7th Cir. 1976); Baker-Chaput v. Commet, 406 F.Supp. 1134 (D.N.H.1976); Alexander v. Silverman, 356 F.Supp. 1179 (E.D.Wisc. 1973). The Complaint indicates that Plaintiff was afforded these procedural safeguards up to the point of each "successful" appeal and Plaintiff does not now suggest otherwise.

What Plaintiff does appear to ultimately allege, in the way of due process deprivation prior to the determination of each appeal, is the legal conclusion that administrative noncompliance with established procedures and guidelines in itself amounts to a deprivation of due process, even though said rules establish requirements in excess of the due process minimum. Such conclusion is incorrect:

If that approach were adopted, there would be a constitutional procedural due process right to have states adhere to any procedural rules

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