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December 17, 1975

MILTON SHAPP, Governor of Pennsylvania, et al.

The opinion of the court was delivered by: HUYETT


 Invoking 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343, plaintiffs bring this action for damages claiming that defendant state and city officials have violated their rights to an appropriate education under the equal protection and the due process clauses of the Fourteenth Amendment to the Constitution. Plaintiffs contend that, as multiple-handicapped children, they are denied equal protection under the Constitution because unlike the programs offered to normal and less severely retarded children, the nature of the educational programs offered them is such that no chance exists that the programs will benefit. Plaintiffs then allege that all named defendants shared in some part of the duty to provide them appropriate education and that each defendant knowingly and maliciously violated this duty.

 Plaintiffs in this action, represented by their parents, are Walter and David Fialkowski. At the time the complaint was filed, Walter was 21 years old with a mental age of 19 months and David was 12 years old with a mental age of 15 months. In September 1972, Walter and David were students at the Longfellow School for the multiple-handicapped. In December 1972 their parents withdrew them from school and demanded a hearing on an alternate placement since, the Fialkowskis allege, Longfellow School did no more than baby-sit for their sons because it offered no training appropriate to their learning capacities. *fn1" In accordance with the procedures established in Pennsylvania Association For Retarded Children v. Commonwealth of Pennsylvania (PARC), 343 F. Supp. 279 (E.D.Pa. 1972), *fn2" a hearing was held in May 1973 at which time the hearing examiner found Walter and David to be in need of training for the multiple-handicapped and reassigned them to Longfellow School. Apparently the Fialkowskis took no further action until they filed this lawsuit. Neither did they send their sons back to school. Walter is now past school age.

 Defendants include local school district officials of the city of Philadelphia and four officials of the Commonwealth of Pennsylvania: Milton Shapp, Governor; Israel Packel, former Attorney General; John Pittenger, Secretary of Education; and Joseph Lantzer, former Director of the Right to Education Office. Before us are four motions to dismiss. Having carefully considered the various grounds for dismissal advanced by these motions, we grant the motions to dismiss of defendants Shapp and Packel; we deny the motions of the other defendants.


 In considering defendants' motions to dismiss, we must accept the material allegations of the complaint as true. Bond v. County of Delaware, 368 F. Supp. 618, 621 (E.D. Pa. 1973). In addition, plaintiff is entitled to any favorable inferences arising out of facts pleaded. Ammlung v. City of Chester, 355 F. Supp. 1300, 1303 (E.D.Pa. 1973), aff'd. 494 F.2d 811 (3rd Cir. 1974). In Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1973), Chief Justice Burger announced certain guidelines to be followed by federal courts in these cases:

When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss . . . the allegations of the complaint should be construed favorably to the pleader.
"In appraising the sufficiency of the complaint we follow . . . the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Although notice pleading is generally sufficient, courts have found it necessary to impose a special pleading limitation in civil rights actions in order to identify and dismiss frivolous suits. This court has ruled that complaints in these cases must be specifically pled or be subject to dismissal. Citing Valley v. Maule, 297 F. Supp. 958, 960-61 (D. Conn. 1968), Judge Green stated in Downs v. Dept. of Public Welfare, 368 F. Supp. 454, 463 (E.D.Pa. 1973), that

 Thus we must weigh the policy of requiring factual specificity in pleading in our assessment of defendants' motions to dismiss.

 The first motion for us to consider is Commonwealth defendants' claim that insufficient allegations of personal involvement are grounds for dismissal. Personal involvement is a necessary element of a § 1983 action. Downs v. Dept. of Public Welfare, supra at 463. The general statutory requisites for recovery are that the conduct complained of must have been engaged in under color of state law, and that such conduct subjected plaintiff to deprivation of a constitutional right. In order to state a claim for relief, then, plaintiff must specifically allege a direct causal link between some official conduct of each Commonwealth defendant and the alleged constitutional deprivations.

 Defendants concede that the requirement of personal involvement does not necessarily mean that the official must have committed the specific wrongful acts. It is also true that when an official directs his subordinates to commit acts, or when he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct. Downs v. Dept. of Public Welfare, supra. In Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir. 1972), the Seventh Circuit recognized that an official's failure to act may be an actionable offense under § 1983, stating that "where the defendant is under some affirmative duty to act and he fails to act accordingly, he may be held negligently responsible for his omission. He is responsible if his omission is unreasonable in light of the circumstances." Unfortunately, the line that determines "unreasonable omissions" is obscure. The cases do suggest, however, that in situations where an official has direct supervisory control over persons committing the alleged violations, the supervisor's general knowledge of the situation triggers an affirmative duty to investigate further. Assuming that a valid constitutional claim has been raised, the official's failure to take any disciplinary action against his subordinates constitutes a breach of the duty owed to those persons injured and a direct cause of their continuing deprivations.

 In Moon v. Winfield, 368 F. Supp. 843 (N.D. Ill. 1973), plaintiff sought monetary damages from the superintendent of police of the city of Chicago, alleging that he was responsible for beatings inflicted upon plaintiff by a police officer. While plaintiff did not claim that the superintendent had ordered the attack, had witnessed the attack, or had ever known of the attack, the complaint was not dismissed for lack of personal involvement. In refusing to dismiss, the court was persuaded by the fact that the superintendent had received information that the policeman had been the subject of complaints for using excessive force and had taken no disciplinary action against him. The court considered defendant's conduct unreasonable under the circumstances, finding that "responsibility obviously obtains when a nonfeasor is a supervisory officer to whose direction misfeasor officers are committed."

 In Wright v. McMann, 460 F.2d 126 (2nd Cir.), cert. denied, 409 U.S. 885, 34 L. Ed. 2d 141, 93 S. Ct. 115 (1972), an inmate was awarded damages against the warden for the cruel and unusual punishment inflicted in connection with the inmate's confinement to a "strip cell." While the warden did not order the placement and was not aware that plaintiff was in solitary confinement, evidence in the record allowed the court to conclude that the warden must have actually known of the "strip cell" conditions at the time in question. The court went on to say that even if defendant possessed no specific knowledge of the alleged deprivations, the fact that he had ultimate responsibility for the operation of the cells was sufficient to charge him with having had constructive knowledge of the actual conditions in the prison. See Holland v. Connors, 491 F.2d 539 (5th Cir. 1974).

 Thus findings of general knowledge combined with direct supervisory control may be sufficient to hold an official personally involved in the unlawful acts of his subordinates. Viewed in this manner, the motion to dismiss must be denied as to defendants Pittenger and Lantzer. Plaintiffs specifically allege that defendant Pittenger was directly responsible for the administration and supervision of the state's public educational system, including the placement and education of retarded children. It is further alleged that Pittenger had set forth the requirements that the local school districts are expected to meet and that he had the duty and the authority to supervise directly plaintiffs' education if the Philadelphia School District was unwilling to provide plaintiffs with a meaningful education. Besides having the authority and the duty to act, Pittenger was in a position of direct control over the actions of the local school districts. He was directly responsible for appointing hearing examiners to investigate challenges of the local school districts' placement transfers of retarded children. In addition, Pittenger personally received and judged all appeals from decisions of the hearing examiners. In regard to defendant Lantzer, plaintiffs claim that he was responsible for insuring that retarded children be placed in appropriate educational programs according to the standards established by the Secretary of Education. Thus one can reasonably infer that either by virtue of his own position or through contact with his supervisor, defendant Pittenger, defendant Lantzer also had direct supervisory control over the policies of the local school district.

 The official positions of both Pittenger and Lantzer were such, then, that a duty to act could be triggered upon defendants receiving information that the local school district had failed to comply with the state's educational placement standards. In their complaint, plaintiffs allege that these defendants knew of widespread violations by the local school district depriving retarded children of any meaningful education. Plaintiffs' complaint is specific as to the nature of the violation, the source of the violation, the time when the violation occurred, and the class of persons being deprived.

 Nonetheless, defendants claim that they cannot be considered personally involved since they had no knowledge of plaintiffs' unique position. Considering the authority and responsibility assumed by these defendants, however, they could still be held liable for not correcting plaintiffs' situation despite the fact that they did not know plaintiffs' names. Perhaps defendants will ultimately show that they lacked even general knowledge of the operations of the Philadelphia School District. Summary dismissal, however, is not ...

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