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June 30, 1971

NORTH PHILADELPHIA COMMUNITY BOARD, an unincorporated association, by Wesley Frazier and Ronald McCoy, Trustees Ad Litem, et al., Plaintiffs,
TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, a Pennsylvania non-profit corporation, et al., Defendants

John Morgan Davis, District Judge.

The opinion of the court was delivered by: DAVIS

Plaintiffs, an unincorporated community association interested in local mental health programs, and individual residents of the North Philadelphia area, have brought this action for monetary, injunctive and declaratory relief against defendants. Plaintiffs seek to rectify alleged misconduct and irregularities in the operation and administration of the Temple Community Mental Health Center, Philadelphia, Pennsylvania (hereinafter referred to as the Center). Plaintiffs sue in their own right and as class representatives of others similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure.

 Jurisdiction is claimed under 28 U.S.C. § 1331 (federal questions), 28 U.S.C. § 1361 (mandamus against federal officials), 28 U.S.C. § 2201 (declaratory judgments), 5 U.S.C. § 701 et seq. (Administrative Procedure Act), *fn1" and 28 U.S.C. § 1343 (Civil Rights).

 The individual defendants are federal, state, county and Temple University officials charged with administering and supervising local mental health programs. The agencies and organizations which the individual defendants head, are also named defendants.

 The defendants have filed motions to dismiss on the following grounds: lack of jurisdictional amount; lack of subject matter jurisdiction, Fed. Rule 12(b) (1); failure to state a claim upon which relief can be granted, Fed. Rule 12(b) (6); compliance with statute; administrative discretion; impropriety of the use of the writ of mandamus to compel a federal official to perform discretionary duties; and inability of the Court to fashion a remedy which would compel the defendants to do or refrain from doing any act. The County defendant's memorandum of law raises the issue of plaintiffs' lack of standing. In the alternative, defendants request summary judgment in their favor, Fed. Rule 56.

 For the reasons stated below, plaintiffs' complaint is dismissed without prejudice so they may await the outcome of present agency investigations.


 The United States Community Mental Health Centers Act, as amended (Title 42 U.S.C. § 2681 et seq.) (hereinafter referred to as the federal act), authorizes the Secretary of the Department of Health, Education and Welfare to make regulations and monetary grants for the establishment of community mental health centers. The Secretary promulgated the necessary regulations and they are enumerated in 42 C.F.R. 54.201, et seq. A state desiring federal funds must submit a state plan complying with the provisions of the federal act. 42 U.S.C. § 2684; 42 C.F.R. 54.202-212.

 Under the terms of the federal act, the Secretary is to insure that the mental health centers are operated in accordance with the federal regulations. He is to receive periodic reports as to the administration of the centers, and is authorized to withhold funds if, after reasonable notice and opportunity for hearing to the appropriate State agency, he finds the State agency is not substantially complying with the provisions of the federal act, 42 U.S.C. § 2686.

 Under the Pennsylvania Health and Retardation Act of 1966, the Department of Public Welfare, and County Mental Health and Retardation Board, are charged with the responsibility of administering county mental health programs and insuring that necessary services are available (50 Purdons P.S. §§ 4201, 4301-4305).

 Temple University applied for and received funds to establish a community mental health center under the auspices of its Health Sciences Center. Plaintiffs contend that Temple University has failed to operate the Center in accordance with federal and state requirements. Plaintiffs further allege that the federal, state and county defendants have permitted this misconduct to continue. Plaintiffs specifically allege that Temple has: (1). misappropriated funds through payment of salaries to persons who have done little or no work for the Center, (2). interfered with the operation of the Center through occupation of some of the Center's buildings by Temple guards, refusal to permit members of the community to enter the buildings, termination of the education and consultation section and firing of some staff personnel, (3). failed to give the community a voice in the Center's planning, operation and administration, (4). violated plaintiffs' civil rights by failure to provide the kind of mental health services available in predominantly white communities, (5). failed to recognize and provide for the specific mental health needs of the black community in which the Center operates.

 Plaintiffs seek the following specific relief: (1). injunction to prevent Temple from interfering with the Center's operations, (2). declaration that the federal act must be applied in accordance with the needs of the communities in which the local centers operate, (3). declaration that the control of the center rests with the community (in particular with plaintiff association), (4). reinstatement of the consultation and educational unit, (5). reinstatement with full back pay of all staff whose services were terminated by Temple, (6). declaration that the consultation and educational units were never legally terminated. (7). Order that Temple pay a sum of money equal to that intended for the Center's use and misappropriated by Temple.

 In their answer, the Temple defendants have stated that (1). They are basically complying with the act. (2). The interference of which plaintiffs complain was instituted only as the result of disturbances in the form of sit-ins which occurred in the Spring and Summer of 1970, and as the disturbances have stopped, Temple's interference has ceased. (3). The ...

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