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SABO v. O'BANNON

March 29, 1984

MARGARET SABO, Administratrix of the Estate of John Strelecki, Jr., Deceased
v.
HELEN B. O'BANNON, A. RUSSELL PARKHOUSE, PAUL BARTLE, RITA BANNING, DR. HERMAN ROETHER, DR. RUSSELL G. RICE JR., HENRY STARR, and MONTGOMERY COUNTY



The opinion of the court was delivered by: DITTER

 John C. Strelecki, Jr., was a mildly retarded individual who was involuntarily committed to Embreeville State Hospital on March 17, 1980, pursuant to an order of the Montgomery County Court of Common Pleas. On April 3, 1980, Strelecki choked on his food while eating lunch and died shortly thereafter due to asphyxiation. Margaret Sabo, Strelecki's mother and the administratrix of his estate, brought this action against various state and local officials *fn1" pursuant to 42 U.S.C. § 1983, section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the fourth, sixth, eighth, and fourteenth amendments of the United States Constitution. Plaintiff alleges that the defendants denied Strelecki his right to minimally adequate treatment, his right to safe conditions, and his right to be free from chemical restraint. See Amended Complaint para. 26, 27. Presently before me are the motions of the defendants for summary judgment. For the reasons that follow, defendants' motions for summary judgment will be granted in part and denied in part.

 I. Facts

 The following facts are undisputed. John Strelecki was a mildly retarded individual who was 34 years old at the time of his death. He was diagnosed as having moderate mental deficiencies coupled with an explosive personality and a history of violent outbursts. Strelecki had been institutionalized in state schools and mental health hospitals for the majority of his life. On February 13, 1980, while living with the plaintiff in Montgomery County, Pennsylvania, Strelecki made threatening gestures towards her and thereafter, upon plaintiff's petition, was committed to the Montgomery County Mental Health/Mental Retardation Emergency Service facility for treatment for a period not to exceed five days pursuant to section 302 of the Mental Health Procedure Act (the Act), 50 Pa. Cons. Stat. Ann. § 7302 (Purdon 1983). One week later, Strelecki was admitted to Norristown State Hospital for additional treatment for a period of 20 days pursuant to section 303 of the Act, 50 Pa. Cons. Stat. Ann. § 7303 (Purdon 1983). This treatment period was later extended indefinitely when Strelecki agreed to enter a voluntary inpatient treatment program under 50 Pa. Cons. Stat. Ann. § 7201 (Purdons 1983). Under the terms of this program he would be able to leave Norristown State Hospital within 72 hours after submitting a written request. Finally, after a commitment hearing was held pursuant to section 406 of the Mental Health and Retardation Act, 50 Pa. Cons. Stat. Ann. § 4406 (Purdon 1983), the Montgomery County Court of Common Pleas ordered Strelecki committed to Embreeville State Hospital for a period not to exceed 60 days. Soon after his transfer to Embreeville, he choked on his food while eating lunch and died. Plaintiff asserts that her son's death resulted from the excessive amounts of drugs that were administered to him during his confinement at Embreeville, which caused a depression of his central nervous system and suppression of his gag reflex.

 Plaintiff also sought to have her son placed in a Community Living Arrangement (CLA) program maintained by Montgomery County. Among the 38 CLAs that were operated by the county were five Adult Behavior Shaping programs. It was the opinion of the staff of the Montgomery County Mental Retardation Program that the most appropriate placement for Strelecki would have been in an Adult Behavior Shaping Program because of his violent conduct. None of the CLAs that existed between December, 1979, and March, 1980, was considered to be suitable a placement for him. Accordingly, he was scheduled to remain at Embreeville until the late spring of 1980, when it was anticipated that an appropriate arrangement would become available.

 In their motions for summary judgments, defendants contend that they are entitled to qualified immunity since their conduct did not violate any clearly established constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In addition, defendants assert that they lack the personal involvement that is necessary before liability may be imposed under section 1983. See Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976). Before I turn to these arguments, however, it is first necessary to determine whether plaintiff has asserted cognizable claims under the particular laws she relies upon and whether any of the defendants are absolutely immune from liability.

 II. Section 504 of the Rehabilitation Act of 1973

 Plaintiff's first theory of liability is founded upon section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, *fn2" which she contends reflects a legislative mandate to ensure mentally handicapped individuals the right to minimally adequate habilitation. The defendants allegedly violated this statute by failing to develop a treatment plan for Strelecki in lieu of institutionalization and by placing him in Embreeville State Hospital, rather than in either Hilltop Haven or in a Montgomery County CLA. As a result of their conduct plaintiff seeks $1 million in damages. Because section 504 does not create an obligation upon the defendants to undertake the action that was sought and, in any event, because this statute does not allow for an award of damages absent an allegation of intentional discrimination, this claim must be dismissed.

 In determining the obligations imposed upon the defendants under section 504, the starting point is the language of the statute itself. See supra note 2. The section appears to be plain. Under this statute, a person who is qualified to perform a task or to enter an educational institution or to receive the benefits of any program or activity that receives federal assistance may not be denied these opportunities simply because he or she is handicapped. Kentucky Association for Retarded Citizens v. Conn, 510 F. Supp 1233, 1243 (W.D. Ky. 1980), aff'd 674 F.2d 582 (6th Cir. 1982). This statute represents a prohibition of certain conduct on the part of the recipients of federal financial assistance. It is silent with regard to the imposition of any duty or affirmative conduct on the part of a state or municipality. See Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982), cert. denied, 460 U.S. 1012, 103 S. Ct. 1252, 75 L. Ed. 2d 481 (1983).

 The view that section 504 does not obligate a recipient of federal funding to undertake any positive action is supported by the decision of the Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979), in which a hearing impaired student sought admission to a nursing school. Noting that her placement would require a fundamental alteration of the school's facilities, the Court stated that, "Neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds." Id. at 411.

 Chief Judge Seitz, in his persuasive dissent in the much-traveled case of Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979) (en banc), rev'd 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981), opinion on remand, 673 F.2d 647 (3d Cir. 1982) (en banc), rev'd 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), echoed a similar rationale. *fn3" At issue was whether section 504 mandates positive action by the state to create new, less restrictive habilitation facilities. Chief Judge Seitz stated that the structure and intent behind this statute was to provide a financial incentive on the part of states towards ensuring the handicapped equal access to federally funded programs, rather than any sort of legislative mandate for action. "The carefully tailored system of programs and grants in the legislation as a whole belies any congressional intention to impose an absolute duty to provide the least restrictive treatment." 612 F.2d at 120. See also Kentucky Association for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1243 (W.D. Ky. 1980), aff'd 674 F.2d 582 (6th Cir. 1982) (Section 504 does not include a legislative mandate for deinstitutionalization).

 Several courts that have considered the applicability of section 504 in circumstances similar to the present case have agreed no cause of action exists where the gravamen of the plaintiff's complaint is that section 504 was violated by denying a mentally retarded individual placement in a residential, non-institutional facility. See Manecke v. School Board of Pinellas County, 553 F. Supp. 787, 790 n. 4 (M.D. Fla. 1982); Garrity v. Gallen, 522 F. Supp. 171, 213 (D. N.H. 1981). The case law and the statutory language is clear that while section 504 prohibits a handicapped individual's being excluded from, being denied the benefits of, or being discriminated against by a recipient of federal financial assistance, it does not mandate any type of affirmative action by the recipient. I therefore hold that to the extent plaintiff seeks to assert a claim under section 504, the complaint must be dismissed.

 Moreover, even if a cause of action did exist under section 504, the claim must still be dismissed due to the unavailability of damages under this statute in the absence of an allegation of intentional discrimination. The issue of whether a private action for damages exist under section 504 has been the subject of conflict among circuit and district courts. Compare Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909, 103 S. Ct. 215, 74 L. Ed. 2d 171 (1982); David H. v. Spring Branch Independent School District, 569 F. Supp. 1324 (S.D. Tex. 1983); Christopher N. v. McDaniel, 569 F. Supp. 291 (N.D. Ga. 1983) (Damages available) with Colin K. v. Schmidt, 715 F.2d 1 (1st Cir. 1983); Marvin H. v. Austin Independent School District, 714 F.2d 1348 (5th Cir. 1983); Reineman v. Valley View School, 527 F. Supp. 661 (N.D. Ill. 1981). (Damages unavailable). This issue, however, appears to have been resolved by the recent decision by the Supreme Court in Guardians Association v. Civil Service Commission, 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983). Under the statutory scheme of section 504, the remedies for a violation of this section include those set forth in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. See 29 U.S.C. 794a(a)(2). In Guardians Association, a majority of the Court, while failing to agree unanimously on most issues, did reach a consensus that compensatory damages are unavailable under Title VI absent a showing of ...


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