function during the relevant period, and were acting in their professional capacities. We therefore conclude that these individual defendants were acting under "color of law", and state action exists here for Fourteenth Amendment purposes.
EQUAL PROTECTION CLAIM
The distinct problem which we encounter in this case is whether there are sufficient factual allegations to establish that plaintiffs' rights to due process (Count 2) and equal protection (Count 1) were violated. Our examination of the Equal Protection Claim convinces us that it cannot stand. Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984), stands for the proposition that a child, being discriminated against on the basis of his handicapped condition, by the state in performing its obligation to provide public education, must proceed under the Education of the Handicapped Act and may not assert a separate Equal Protection Claim for a violation of the Act. Id., at 1009-1013. Apart from the allegation that plaintiff Kara is handicapped, there are no other allegations that plaintiff Kara is a member of a protected class, or that she was subjected to such unjust and illegal discrimination in distinction to other persons in similar circumstances as would establish an equal protection violation. United States v. Torquato, 602 F.2d 564, 568 (3d Cir. 1979); Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). For these reasons the Equal Protection claim must fail. Count 1 will be dismissed.
DUE PROCESS CLAIM
Whether or not plaintiff sufficiently asserts a due process claim presents a more difficult determination. Plaintiff Kara asserts that she was deprived of needed medication and medical attention by persons acting under "color of state law". The Supreme Court's ruling in Smith v. Robinson, supra, does not entirely preclude the possibility of a simultaneous section 1983 claim based on a separate due process violation. Thus there may be remedial gaps in the Education of the Handicapped Act which may be actionable under Section 1983. We assume that any child has a liberty interest in having access to needed medication and medical attention without deprivation by persons acting under "color of state law", and that this liberty interest is not a particular interest falling under the exclusive purview of the Education of the Handicapped Act. Thus we believe that plaintiffs have stated a cognizable liberty interest, of which they may not be deprived without due process of law. However, we believe that this is a situation analogous to that in Ingraham v. Wright, supra, where the teacher and principal must exercise prudence and restraint in making decisions, and where additional administrative safeguards as a constitutional requirement would significantly intrude into the area of educational responsibility that lies primarily with public school authorities. The teacher, school nurse and principal may be subject to civil tort remedies for unjustified actions, and we believe that these traditional common-law remedies are fully adequate to afford due process. Therefore Count 2 will be dismissed.
Count 3 relies on the federal statutory rights set forth in the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq., to establish plaintiff's third Section 1983 claim. We believe this count must also fail. While we recognize that the federal substantive right necessary to state a Section 1983 claim may be established through federal statute, see Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), whether or not a particular statute provides such a "right" enforceable under Section 1983 must be determined based on Congressional intent. See Middlesex County Sewage Authority v. National Sea Clammers, 453 U.S. 1, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). The Supreme court has recently stated that Section 1983 actions are not available to redress violations of the Education of the Handicapped Act, Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1983), since Congress intended to create an exclusive remedy in the Act. Allowing a plaintiff to circumvent the Act's administrative remedies would be inconsistent with Congress' carefully tailored scheme. Id. at 1009-1013. Based on this reasoning we conclude that plaintiffs must proceed if at all with the remedies provided for under the Act and may not attempt to convert the action into a Section 1983 claim.
Count 3 will be dismissed on this basis.
PENDANT STATE CLAIMS
Pendant jurisdiction over state claims exists whenever there is a substantial federal claim and the relationship between the federal and state claims permits the conclusion that the entire action before the court comprises one "case". United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Since our decision here concludes that there is no substantial federal claim in this action, we will dismiss the remaining state claims. This ends all further proceedings in this action.
NOW this 13th day of July, 1987, in accordance with the accompanying Opinion, IT IS ORDERED that plaintiffs' complaint is DISMISSED, without prejudice, thereby ending all further proceedings in this action.
GERALD J. WEBER, United States District Judge.