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July 1, 1977


The opinion of the court was delivered by: LORD, III

 Plaintiff, Aaron Eubanks, brings this civil rights action for declaratory relief and damages alleging that his constitutional and state law rights were violated when he was transferred from Philadelphia State Hospital to Farview State Hospital without notice and hearing and that his incarceration at Farview denied him his right to treatment or release and his right of treatment in the least restrictive alternative. Jurisdiction is alleged under 28 U.S.C. §§ 2201, 2202, 1331 and 1343. Defendants are four doctors and a psychologist who were employed at state hospitals and a state administrator.

 Eubanks alleges that his transfer to Farview resulted in increased restrictions on his freedom of movement, right to privacy and right to visitation; increased danger that he might be assaulted or physically injured; "decreased and more severe housing and personal hygiene conditions"; increased stigmatization; and deprivation of his right to treatment.

 Defendants move to dismiss alleging that the complaint fails to state a claim upon which relief can be granted; the statute of limitations bars the action for transfer without notice and hearing; the suit is barred by the eleventh amendment; defendants are immune from liability; defendants Owens and Raddin have not been put on notice of the charges against them; and the claim for declaratory relief is moot. *fn1"



 Defendants claim that there is no constitutional right to treatment and that, in any event, the plaintiff does not allege facts indicating that he was not provided treatment. Speaking of the constitutional right to meaningful treatment, the Third Circuit said in Scott v. Plante, 532 F.2d 939 (3d Cir. 1976):

"The Supreme Court did not reach the issue in O'Connor v. Donaldson, supra. Nor has this court considered it. It is not the kind of issue, however, which we should attempt to resolve definitively on the record that is before us. In both Wyatt v. Aderholt, supra, and Donaldson v. O'Connor, supra, the matter was before the court after trial. It suffices for present purposes to say that it does not appear to a certainty that Scott would be entitled to no relief on his right to treatment claim under any state of facts he could prove in support of that claim. Thus, a Rule 12(b)(6) dismissal was improper." Id. at 947.

 Therefore, we will not decide at this stage whether there is a constitutional right to treatment.

 We discern two separate arguments in defendants' pleading challenge: first, that plaintiff's claims are not sufficiently specific; and second, that plaintiff is only claiming a denial of adequate treatment and not a total deprivation of treatment. As to the first objection, we agree that plaintiff's allegations are summary except in comparing the Philadelphia State Hospital facilities to the Farview State Hospital facilities and concluding that the latter are relatively meager. But we believe that at this stage of the lawsuit, before significant discovery, it would be inappropriate to require more of an involuntarily committed person who attacks his treatment at a mental institute. As to the second criticism, we believe that the right to treatment encompasses the right to an adequate level of treatment. We cannot say at this stage of the proceedings that Eubanks will not be able to prove that he was denied meaningful treatment.

 Moreover, in addition to any constitutional claim of a right to treatment, the plaintiff states a claim for a violation of his statutory right to adequate treatment. Several sections of the Pennsylvania Mental Health Act in force at the time of this action, *fn2" support our conclusion that Pennsylvania clearly intended to grant such a right.

 Section 4406, under which plaintiff was committed, provided for court commitment:

"If, upon examination, it is determined that such person is in need of care at a facility, the examining physicians or director, as the case may be, shall immediately report to said court which may order the commitment of such person for care and treatment." 50 P.S. § 4406(b) (emphasis added).

 Section 4418 provided that a committed person must be released when care or treatment is no longer necessary:

"Any admission or commitment of a person under this act, shall be valid and authorize the detention of such person only for the period specified in the section under which he was admitted or committed, or, where authorized, for such period as a court may specify in its order of commitment. If no period is specified in a commitment, the person may be detained until care or treatment is no longer necessary, whereupon he shall be discharged, or otherwise dealt with in accordance with the provisions of this act." 50 P.S. § 4418 (emphasis added).

 Section 4423 specifically grants certain rights to persons committed including the right:

"To be released as soon as care and treatment in a facility is no longer necessary." 50 P.S. § 4423(6).

 Finally, section 4201 granted the Department of Welfare the power and duty:

" To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them, regardless of religion, race, color, national origin, settlement, residence, or economic or social status." 50 P.S. § 4201(1) (emphasis added).

 See In re Joyce, No. 2035-69 (Pa. Com. Pl. Ct. Allegheny County 1975), holding that Section 4201 grants the mentally retarded a right to treatment.

 We believe that these sections in their totality establish a state law right to treatment or release.


 Eubanks alleges that his transfer from Philadelphia State Hospital, a minimum security institution, to Farview State Hospital, a maximum security institution, violated the doctrine of least restrictive alternative. This doctrine requires that "[the] breadth of legislative abridgment must be viewed in light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U.S. 479, 488, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960). Defendants argue that Eubanks has no constitutional right to be institutionalized in the setting which least intrudes on his rights and liberties.

 Fundamental rights are implicated where the state civilly commits an incompetent person to a mental hospital which is substantially more restrictive than other state mental hospitals to which one could be sent. Cf. Baxstrom v. Herold, 383 U.S. 107, 113, 15 L. Ed. 2d 620, 86 S. Ct. 760 (1966). As the District of Columbia Circuit Court noted in Covington v. Harris, 136 U.S. App. D.C. 35, 419 F.2d 617 (1969):

 See also Stamus v. Leonhardt, 414 F. Supp. 439 (S.D. Iowa 1976); Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974); Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974) (mentally retarded); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) (three-judge court), vacated and remanded on other grounds, 414 U.S. 473, 94 S. Ct. 713, 38 L. Ed. 2d 661 (1974); Dixon v. Attorney General, 325 F. Supp. 966 (M.D. Pa. 1971) (specifically ...

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