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Alessi by Alessi v. Com. of Pa.

filed: January 11, 1990; As corrected.

ALESSI, CYNTHIA, BY HER PARENTS, AND NEXT FRIENDS ALESSI, RICHARD AND ALESSI, ENOLA
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE WHITE, JOHN, SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JOHN WHITE, SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 88-9688.

Higginbotham, Becker and Nygaard, Circuit Judges. Becker, Circuit Judge, concurring in the judgement in part and dissenting in part.

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This appeal is from a grant of a preliminary injunction ordering the Pennsylvania Department of Public Welfare to fund an immediate residential placement for a blind and mentally retarded young woman. The Pennsylvania Department of Public Welfare has insufficient funds to serve adequately all of the mentally retarded individuals in the state who qualify for residential services. It leaves to each county the determination as to how to allocate among needy individuals in that county the limited state funds that the Department provides. This case raises the question whether the Department violates the Fourteenth Amendment to the United States Constitution by its procedures for requesting and allocating state funds and by its failure to provide special funds for an individual who is in dire need of appropriate residential services but is not now receiving them because she is on a waiting list.*fn1 We conclude that it does not.

1. Facts and Procedural Background

Cynthia Alessi is a 23-year old woman who is profoundly mentally retarded and legally blind. She also suffers from other serious physical and behavioral disabilities. She has a congenital heart defect, is hyperactive, has an active seizure disorder, and experiences "significant behavioral difficulties." Appendix ("App.") at 105-6. From 1978 through June, 1986, Alessi resided at the Royer-Greaves School for the Blind ("Royer-Greaves"), in an educational placement by the Haverford School District of Delaware County, Pennsylvania. During those eight years, Cynthia made significant gains for a person with her disabilities and had become happy, emotionally stable, non self-abusive and toilet trained. She could dress herself and perform simple vocational tasks. At the end of her educational placement, at age 21, Alessi was sent home to her parents. App. at 106; Appellee's Brief ("Apple's Br.") at 4.

Alessi's parents, realizing that her educational entitlement would end in June of 1986, and that the Delaware County Mental Health/Mental Retardation ("MH/MR") Association would be responsible for providing services to her thereafter, applied to a number of federally-funded facilities for the mentally retarded that seemed to be appropriate to Alessi's needs. Apple's Br. at 4-5. All of them rejected her, saying that they were unable to care for someone with her overwhelming disabilities. Id. Delaware County has some state facilities equipped to care for Alessi, but no places are available in them at present. The MH/MR Association says that there are no funds to place Alessi in a private facility such as the Royer-Greaves School, which remains willing and able to receive her, and that because of inadequate funds from the Pennsylvania Department of Public Welfare ("DPW" or "Department"), it cannot provide her with any appropriate residential service at present. App. at 38-39. The DPW does not allocate money for individual cases; instead, it gives a lump sum to each county and the county distributes it. Delaware County maintains a waiting list of individuals who qualify for care, and provides care as funds become available.*fn2 Since her discharge from the Royer-Greaves School, Alessi has been in a day program for six hours a day, and she spends the rest of her time at home with her parents. In three years of such care, she has lost virtually all of the training she had gained during her eight years at Royer-Greaves. App. at 106-07. She is no longer toilet trained and does not use the minimal sign language she had acquired. She engages in serious self-abusive behavior, awakens repeatedly at night screaming, has knocked a door off its hinges and is in danger of harming herself. Unrebutted expert testimony has established that unless she receives appropriate residential care in the near future, she may never be able to regain the basic skills she had so painstakingly acquired. App. at 110.

In October, 1986, Alessi's parents petitioned for her involuntary commitment to an appropriate residential facility pursuant to the Pennsylvania Mental Health and Mental Retardation Act of 1966 ("MH/MR Act"), Pa. Stat. Ann. tit. 50, §§ 4101-4704, § 4406 (Purdon 1969 & Supp. 1989).*fn3 Neither the DPW nor any of its officials or employees was made a party to that action; the DPW was informed of the action, but did not intervene. App. at 107-108. At the conclusion of the commitment hearing, the Court of Common Pleas of Delaware County ordered that Alessi be committed to the Royer-Greaves School at the expense of the DPW. App. at 108. The DPW appealed the order and the appeal was quashed by the Commonwealth Court on the ground that the DPW did not have party status to appeal because it had not intervened. Commonwealth of Pennsylvania v. Alessi, 105 Pa. Commw. 453, 455, 524 A.2d 1052, 1053 (1987). In August, 1988, the DPW was held in contempt by the Delaware County Court of Common Pleas for failing to comply with its order, but the Commonwealth Court reversed the contempt order on the ground that the Court of Common pleas had no jurisdiction over the Department in the case. Dept. of Public Welfare v. Alessi, 119 Pa. Commw. 160, 163-64, 546 A.2d 157, 158-59 (1988). Alessi filed a Petition for Allowance of Appeal of that decision before the Pennsylvania Supreme Court in September 1988, but the court had not ruled on the petition at the time of this appeal. Apple's Br. at 6. In May, 1988, Alessi filed a civil rights action seeking declaratory and injunctive relief and damages against the DPW in the Court of Common Pleas of Delaware County, alleging violations of her Fourteenth Amendment rights pursuant to 42 U.S.C. §§ 1983 and 1985 (1982). She filed a motion for a preliminary injunction at the same time. At the hearing on the motion for the preliminary injunction, the DPW challenged the jurisdiction of the court to determine claims against Commonwealth officers for declaratory and injunctive relief brought under those statutes, and the Delaware County Court of Common Pleas held that it had no jurisdiction with regard to those claims. App. at 109.

In December, 1988, plaintiff filed this motion for declaratory and injunctive relief under 42 U.S.C. §§ 1983 and 1985 in United States District Court for the Eastern District of Pennsylvania and requested a preliminary injunction at the same time. Appellant's Brief ("Applt's Br.") at 7.

In granting the preliminary injunction ordering the DPW to provide funds for an immediate residential placement for Alessi, 710 F. Supp. 127 (E.D. Pa. 1989), the district court found that Alessi had a constitutionally protected property interest in appropriate residential services under the Pennsylvania MH/MR Act, 50 Pa. Stat. Ann. § 4406. App. at 119-22. It also found that there was a substantial likelihood that DPW's procedures for funding its residential programs, which regularly resulted in insufficient funds and in this case resulted in the denial of services for Alessi, were irrational and arbitrary. The court found that the DPW knowingly failed to request in its budget an amount adequate to cover cost of the residential services for all who were entitled to them. In addition, it found that the DPW failed to base allocations on projections of the counties' needs for a given year but instead made across the board cost-of-living increases to the county budgets for the previous year. App. at 122-23. The preliminary injunction that is appealed here ordered the DPW to provide the state funding necessary for Alessi's immediate placement at either the Royer-Greaves School or the Elwyn Institute. App. at 125-26. A stay of the preliminary injunction was granted pending this appeal. App. at 153.

II. Discussion

We have noted the following factors among those that guide the exercise of the trial court's equitable discretion in its decision to grant a preliminary injunction: (1) the probability of irreparable injury to the moving party in the absence of relief; (2) the possibility of harm to the non-moving party if relief were granted; (3) the likelihood of success on the merits; and (4) the public interest. United States v. Price, 688 F.2d 204, 211 (3d Cir. 1982). Our authority to review a district court's decision to issue a preliminary injunction is limited. We must affirm the decision unless the court has abused its discretion, committed an obvious error in applying the law or made a serious mistake in considering the proof. Id. at 210; Premier Dental Products v. Darby Dental Supply Co., 794 F.2d 850, 852 (3d Cir. 1986). With this standard in mind, we shall review the factors to be considered with regard to the grant of the preliminary injunction.

The probability of irreparable injury to Cynthia Alessi if the preliminary injunction is not granted is beyond dispute. Unrebutted expert testimony established the tragic facts of Alessi's severe regression since her educational placement at Royer-Greaves ended three years ago. She has lost virtually all of the basic human skills and training she had acquired in her eight years at the school. The district court found that if it refused to grant the requested relief, Alessi would "suffer the irreparable injury of continuing to regress from a body incapable of much more than rocking itself back and forth. Alessi's family cannot afford the expense of residential care, and without it she may regress to the point where she will never be able to regain basic skills." App. at 123. The district court's finding is well supported and it did not abuse its discretion in making it.

The DPW claims that the district court did not discuss the second or fourth factors, the possibility of harm to the Department or to other interested parties and the public interest if the injunction were granted. The DPW notes that in cases involving public issues or policy matters it is particularly appropriate that the court consider possible harm to other interested parties and to the public interest in considering a request for a preliminary injunction. Applt's Br. at 17; see also Oburn v. Shapp, 521 F.2d 142 (3d Cir. 1975).

The DPW argues that court orders requiring it to pay for services for particular individuals severely disrupt the Department's ability to plan and coordinate the equitable distribution of services to the mentally retarded throughout the state. It claims that compliance with such orders requires redistribution of available funds to the counties, which results in other counties' diminished ability to maintain existing services to their current clients, and that compliance with this order will cause it to reduce the amount of community residential funds it has allocated to some or all of the other counties. App. at 115. Counsel for Alessi counters that there is enough flexibility in the DPW budget to allow it to fund Alessi's placement without requiring it to redistribute money to other counties. He suggests that the DPW could reallocate to Delaware County for Alessi's placement part of the approximately one million dollars it budgets annually for conferences and training. App. at 57.

The district court mentioned the DPW's allegations that court orders forcing it to provide money for individuals disrupt its overall plans, but did not discuss them further. We may assume, however, that it concluded that whatever harm the DPW and the public would sustain from the preliminary injunction was not great enough to bar its issuance in the face of the tragic and irreparable consequences for Alessi if it were not issued. We cannot say that the district court abused its discretion in reaching that conclusion. The possible harm caused by issuing this preliminary injunction is not great, and it must be distinguished from the greater harm that might result to the DPW and the public interest if Alessi prevailed on the merits and the DPW had to face such challenges from individuals on a regular basis. The amount involved here is only the cost of paying for Alessi's residential placement until the case has been tried, and the court required that an appropriate bond be posted to cover that cost in the event that Alessi did not prevail on the merits. App. at 126.

We now reach the question of whether Alessi is likely to prevail on the merits. This turns on whether Alessi has a federally protected interest in receiving appropriate residential services from the DPW and whether the DPW violated her fourteenth amendment due process rights in failing to provide such services.

The district court in this case did not base its injunction on a substantive due process right to mental retardation services under the fourteenth amendment, and it is clear that such a claim could not succeed under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989) and Philadelphia Police and Fire Association For Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989). On ...


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