Torisky v. Schweiker

• Decision Date: 28 April 2006
• Docket Number: No. 05-1496.,05-1496.
• Citation: 446 F.3d 438
• Parties: Daniel TORISKY, as guardian of his son Edward A. Torisky; Laura Mooney, as guardian of her sister Susan Riley; Kenneth Ammons, as guardian of his son Kenneth Ammons, Jr.; Albert Baumgartner, as guardian of his son George Baumgartner; Charles Cihil, as guardian of his son Richard Cihil; Patsy Conca, as guardian of his son Mario Conca; Joan Connors, as guardian of her sister Helen Connors; Peter Demczyk, as guardian of his son Max Demczyk; Guy Di Marzio, as guardian of his brother Carlo Di Marzio; Aldo Giannini, as guardian of his son Ronald Giannini; Maureen Puskar, as guardian of her sister Dorothy Kohut; Jon Lackman, as guardian of his sister Elizabeth Lackman; Charles Miller, as guardian of his daughter Dianne Miller; Mary Pasinski, as guardian of her brother Joseph Pasinski; Jeanne Claus, as guardian of her son William Schwartz; Kenneth Smith, as guardian of his son Larry Smith; Gertrude Smorada, as guardian of her son Dennis Smorada; John Testa, as guardian of his daughter Christine Testa; Gerald Ward, as guardian of his daughter Sharon Ward; Diane Wrana, as guardian of her daughter Christine Wrana; Walter Baranowski, as guardian of his son Leon Baranowski; James E. Ford; Peggy Ford, as guardians of their son William Ford; Naomi Da Pra, as guardian of her sister Marion Hemmis; Eugenia Kolessar, as guardian of her son Gary Kolessar; Joanne Martin, as next friend of her son Kevin Patterson; Gregory Underwood; Margaret Underwood, as guardians of their son Michael Underwood v. Mark S. SCHWEIKER, as Governor of the Commonwealth of Pennsylvania; Department of Public Welfare of the Commonwealth of Pennsylvania; Feather O. Houstoun, individually, and as Secretary of the Department of PublicWelfare of the Commonwealth of Pennsylvania; Nancy R. Thaler, individually, and as Deputy Secretary of the Pennsylvania office of Mental Retardation Pennsylvania Protection and Advocacy, Inc.; ARC Allegheny; ARC Pennsylvania (Intervenors in D.C.) Feather O. Houstoun and Nancy R. Thaler, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

446 F.3d 438

Daniel TORISKY, as guardian of his son Edward A. Torisky; Laura Mooney, as guardian of her sister Susan Riley; Kenneth Ammons, as guardian of his son Kenneth Ammons, Jr.; Albert Baumgartner, as guardian of his son George Baumgartner; Charles Cihil, as guardian of his son Richard Cihil; Patsy Conca, as guardian of his son Mario Conca; Joan Connors, as guardian of her sister Helen Connors; Peter Demczyk, as guardian of his son Max Demczyk; Guy Di Marzio, as guardian of his brother Carlo Di Marzio; Aldo Giannini, as guardian of his son Ronald Giannini; Maureen Puskar, as guardian of her sister Dorothy Kohut; Jon Lackman, as guardian of his sister Elizabeth Lackman; Charles Miller, as guardian of his daughter Dianne Miller; Mary Pasinski, as guardian of her brother Joseph Pasinski; Jeanne Claus, as guardian of her son William Schwartz; Kenneth Smith, as guardian of his son Larry Smith; Gertrude Smorada, as guardian of her son Dennis Smorada; John Testa, as guardian of his daughter Christine Testa; Gerald Ward, as guardian of his daughter Sharon Ward; Diane Wrana, as guardian of her daughter Christine Wrana; Walter Baranowski, as guardian of his son Leon Baranowski; James E. Ford; Peggy Ford, as guardians of their son William Ford; Naomi Da Pra, as guardian of her sister Marion Hemmis; Eugenia Kolessar, as guardian of her son Gary Kolessar; Joanne Martin, as next friend of her son Kevin Patterson; Gregory Underwood; Margaret Underwood, as guardians of their son Michael Underwood v. Mark S. SCHWEIKER, as Governor of the Commonwealth of Pennsylvania; Department of Public Welfare of the Commonwealth of Pennsylvania; Feather O. Houstoun, individually, and as Secretary of the Department of PublicWelfare of the Commonwealth of Pennsylvania; Nancy R. Thaler, individually, and as Deputy Secretary of the Pennsylvania office of Mental Retardation Pennsylvania Protection and Advocacy, Inc.; ARC Allegheny; ARC Pennsylvania (Intervenors in D.C.) Feather O. Houstoun and Nancy R. Thaler, Appellants.

No. 05-1496.

United States Court of Appeals, Third Circuit.

Argued January 25, 2006.

Opinion Filed April 28, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Howard C. Ulan, Daniel M. Fellin (Argued), Commonwealth of Pennsylvania, Office of Legal Counsel, Department of Public Welfare, Harrisburg, PA, for Appellants.

Mark J. Murphy (Argued), Disabilities Law Project, Philadelphia, PA, for Intervenors.

Before McKEE and STAPLETON, Circuit Judges, and POLLAK,^* District Judge.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

This appeal presents the issue of whether a state's affirmative duty under the Due Process Clause to care for and protect a mental health patient in state custody depends upon the individual's custody being involuntary. Contrary to the District Court's resolution of this issue, we conclude that the state does not owe the affirmative duties of care and protection first enunciated in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), to those individuals who are free to leave state custody. We will affirm the District Court's order denying appellants' claim to qualified immunity, however, because resolution of that claim should await fuller development of the record.

I.

The plaintiffs are the guardians of twenty adult individuals with mental retardation who formerly resided at Western Center, a mental retardation institution operated by Pennsylvania's Department of Public Welfare ("DPW").¹ On April 11-12, 2000, DPW closed Western Center and transferred its remaining residents, including the plaintiffs in the present litigation, to privately operated facilities. At the time of the closing, the plaintiffs were "unwilling to be transferred to placement in community facilities of any type," "medically and developmentally inappropriate for community placement," "medically and mentally fragile, especially when removed from their familiar institutional surroundings," "in need of continuous care by on-site multidisciplinary staff," and "in need of continuity of placement; stability, and therapeutic access to family." Am. Compl. ¶ 9.

In the course of the transfer, "a physical blockade was set up by state police at Western Center to separate plaintiffs from their parents, guardians, relatives and other loved ones." Id. at ¶ 40. "Against each plaintiff's will, each was prevented from making physical contact with any individual on the other side of the blockade; was ordered into and placed within a bus or van at Western Center, and was then transported to various placements several hours away." Id. at ¶ 41. Plaintiffs allege that state employees utilized "[p]hysical and psychological force" and that the plaintiffs "suffered severe physical and psychological damage in the forced, involuntary transfer from Western Center." Id. at ¶¶ 18, 42.

The plaintiffs, through their guardians, filed suit in the Middle District of Pennsylvania alleging violations of 42 U.S.C. § 1983 and other federal and state statutes. In their complaint, the plaintiffs allege that the defendants violated their "constitutional life and liberty interest in... appropriate placement and appropriate medical and therapeutic treatment from the state of Pennsylvania." Id. at ¶ 12. They further allege that the individually named defendants, including Feather Houston, the Secretary of DPW, and Nancy Thaler, the Deputy Secretary, "were personally responsible for the decision to transfer each plaintiff." Id. at ¶ 43.

Based on these allegations, plaintiffs sought injunctive relief under the Due Process Clause. In Count V, the only claim currently before us, the plaintiffs sought monetary damages from the individual defendants Thaler and Houston based on the same due process violation.

The defendants moved to dismiss, asserting, inter alia, that defendants Houston and Thaler were protected by qualified immunity from plaintiffs' damage claims. The District Court viewed the issue as whether the substantive due process rights to care and protection possessed by "involuntarily committed residents in state facilities" under Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), "are clearly established as extending to voluntarily committed persons." App. at 30-31. The District Court concluded that it was clearly established that such due process protections do extend to those who are voluntarily committed and denied the motion. We will affirm the order of the District Court, albeit for a different reason.

After Houston and Thaler filed this interlocutory appeal, the plaintiffs failed to enter an appearance or file a brief. Houston and Thaler are entitled to pursue their appeal, however, and we are required to proceed without the benefit of an appellee's brief. United States v. Everett, 700 F.2d 900, 902 n. 5 (3d Cir.1983) ("If an appellee after proper notice fails to file a brief, then we may decide the case on the brief of the appellant only."); 16A Wright, Miller, & Cooper, Federal Practice & Procedure § 3974.2 at 525 (3d ed.1999); cf. Fed. R.App. P. 31(c).

II.

The District Court had jurisdiction over the plaintiffs' constitutional claims under 28 U.S.C. § 1331. We have jurisdiction to review the District Court's denial of qualified immunity pursuant to the collateral order doctrine. Rouse v. Plantier, 182 F.3d 192, 196 (3d Cir.1999); Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).² In reviewing a denial of qualified immunity at the Rule 12(b)(6) stage of litigation, we accept the plaintiffs' allegations as true and draw all inferences in their favor. Larsen v. Senate of Com. of Pa., 154 F.3d 82, 87 (3d Cir.1998).

III.

The officials assert qualified immunity with respect to the plaintiffs' damage claims brought under 42 U.S.C. § 1983. They will be entitled to such immunity if "`their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "A court evaluating a claim of qualified immunity `must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of alleged violation.'" Id. (quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). This second inquiry "must be undertaken in light of the specific context of the case." Id.

As a threshold matter, we note that we, like the District Court, read the damage claims before us as resting solely on the substantive due process rights of care and protection recognized in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Youngberg addresses only the extent to which the Due Process Clause imposes upon the state an affirmative duty to care for, treat, and protect persons in its custody. Id. at 324, 102 S.Ct. 2452. We hasten to note that the Due Process Clause, of course, also forecloses the state under some circumstances from taking affirmative action that deprives citizens of interests in life or liberty, regardless of their custodial status. As we pointed out in Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 466 (3d Cir.1990), residents of state institutions whose circumstances do not qualify them for protection under Youngberg nevertheless possess other substantive due process rights...