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DANIEL B. v. O'BANNON

June 11, 1984

DANIEL B., and JERRY G. on behalf of themselves and all others similarly situated
v.
HELEN O'BANNON, in her official capacity as Secretary, Department of Public Welfare, Commonwealth of Pennsylvania, and LEON SOFFER, in his official capacity as County Administrator, Philadelphia County Mental Retardation Program, and CITY OF PHILADELPHIA



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 Plaintiffs filed this action on behalf of a putative class of mentally retarded individuals institutionalized at Woodhaven Center ("Woodhaven"), an intermediate care facility for the mentally retarded operated by Temple University under contract with the Commonwealth of Pennsylvania. Plaintiffs sought declaratory and injunctive relief for all Woodhaven residents "who are unnecessarily institutionalized at that facility because defendant state officials have failed to fulfill their federal and state duties to provide plaintiffs with suitable community living arrangements." Third Amended Complaint para. 1. Plaintiffs brought this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and 28 U.S.C. § 1331; jurisdiction was conferred by 28 U.S.C. § 1343(3) and (4).

 
of all mentally retarded individuals who presently reside or in the future will reside at the Woodhaven Center, whose domicile is Philadelphia, and who have completed or will complete their treatment regimen there but are unable to leave that institution due to the defendants' failure to perform their duties under federal and state law to provide them suitable community living arrangements.

 Third Amended Complaint para. 11. Plaintiffs alleged the Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania:

 
has the responsibility, inter alia, to: (i) assure within Pennsylvania the availability and equitable provision of mental retardation services to all persons who need them; (ii) assist each county and Philadelphia in carrying out mental retardation duties; and (iii) supervise and fund mental retardation facilities, services and programs.

 Third Amended Complaint paras. 6, 7. Plaintiffs alleged the Deputy Commissioner of the Philadelphia Office of Mental Health and Retardation, and the City of Philadelphia:

 
have the responsibility, inter alia, to: (i) establish a mental retardation program in Philadelphia for the care, treatment and rehabilitation of the mentally retarded; (ii) establish multidisciplinary staff units known as base service units to provide such service; (iii) direct, control and monitor the activities of the base service units, including aftercare services to prevent unnecessary and prolonged institutionalization and the creation and operation of community living arrangements.

 Third Amended Complaint para. 10. The complaint concerned not the treatment received at Woodhaven but the failure to release plaintiffs into community treatment programs.

 Plaintiffs alleged they voluntarily committed themselves to Woodhaven pursuant to contracts entered into with Woodhaven and plaintiffs' respective base service units ("BSU"). Third Amended Complaint paras. 19, 30. The contracts called for Woodhaven to provide appropriate treatment programs for plaintiffs and for the BSUs to provide community living arrangements when plaintiffs completed these treatment programs. Third Amended Complaint paras. 21, 32. Plaintiffs alleged that although they completed their Woodhaven treatment programs and were referred by the Woodhaven staff to BSUs for community placement, they have not been placed in community living arrangements. Third Amended Complaint paras. 24, 25, 35 and 36. Plaintiffs alleged that they have not been placed "because defendants . . . have failed to discharge their . . . duties under federal and state law to provide plaintiffs with suitable community living arrangements." Third Amended Complaint paras. 25, 36.

 Plaintiffs sought a declaratory judgment that defendants violated plaintiffs' right to treatment and protection from harm provided in the Eighth and Fourteenth Amendments to the United States Constitution, the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq., Third Amended Complaint paras. 48, 49, and defendants' duty under Pennsylvania law to provide treatment in the least restrictive alternative. Third Amended Complaint, para. 50. However, at the last pretrial conference plaintiffs withdrew their claims under the Eighth Amendment and 42 U.S.C. § 6011 (the Developmentally Disabled Assistance and Bill of Rights Act) because of doctrinal developments since the filing of this complaint. On January 23, 1984, the Supreme Court held in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), that the Eleventh Amendment bars a federal suit against state officials to enforce state law; therefore, the state grounds must also be dismissed. Plaintiffs' claims for relief are now based on the Fourteenth Amendment Due Process Clause and § 504 of the Rehabilitation Act of 1973. Plaintiffs also seek injunctive relief requiring defendants to develop and execute an individual plan for each plaintiff for placement in a community living arrangement.

 Before the court are three motions:

 
1) Plaintiffs' Motion to Certify ...

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