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UNITED STATES v. PENNSYLVANIA

August 31, 1993

UNITED STATES OF AMERICA
v.
COMMONWEALTH OF PENNSYLVANIA



The opinion of the court was delivered by: CLARENCE C. NEWCOMER

 Newcomer, J.

 August 31, 1993.

 Presently before the Court is defendants' Motion to Dismiss this action pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) because plaintiff has failed to state a claim for relief.

 I. Background:

 The United States of America ("USA") brought this action under the Civil Rights of Institutionalized Persons Act of 1980 [CRIPA], 42 U.S.C. § 1997 et seq., alleging that the residents at the state-operated Embreeville Center ("Embreeville") are being deprived of rights secured to them by the United States Constitution. Defendants are the Commonwealth of Pennsylvania, as owner and operator of Embreeville, and Robert Casey, in his official capacity as governor of Pennsylvania. Also named as defendants are Karen F. Snider, Secretary of the Department of Welfare ("DPW"), and Nancy Thaler, Deputy Secretary of Mental Retardation of DPW, in their respective official capacities as administrators of Embreeville, and Reuben Shonebaum, Director of Embreeville, in his capacity as day-to-day operations manager of the facility.

 The USA avers that defendants have failed to protect residents from abuse and neglect, to provide the necessary level of individualized training and behavioral programs, to provide adequate medical care, to ensure an adequate and sufficiently trained staff, to safeguard residents from improper and excessive administration of psychotropic medications, and to accurately maintain resident records. (PP 16-21 of USA's complaint.)

 Defendants' motion to dismiss specifically raises the following three issues for determination by this Court: (1) Whether substantive due process rights are implicated by the acts or omissions alleged by the USA pursuant to CRIPA; (2) Whether the factual allegations in the complaint are sufficient to support the requisite factual specificity in a filing of suit pursuant to CRIPA; and (3) Whether the pre-filing certification requirements of 42 U.S.C. § 1997b(a) have been satisfied. Each of these contentions will be dealt with in turn.

 II. Standard of Review:

 Under the standard of review for a motion to dismiss for failure to state a claim, all factual allegations in the complaint are taken as true and plaintiff must be given the benefit of every favorable inference that can be drawn from these allegations. Elliott v. State Farm Mut. Auto. Ins. Co., 786 F. Supp. 487, 489 (E.D. Pa. 1992). Dismissal is only appropriate if it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); In re Sunrise Securities Litigation, 793 F. Supp. 1306 (E.D. Pa. 1992).

 III. Discussion:

 A. Constitutional Duty Owed

 A threshold question in defendants' Motion to Dismiss is whether the state owes a constitutional duty to afford substantive due process rights to voluntarily confined residents of Embreeville. Defendants argue that since the state did not exercise its governmental power to force patients to come to or remain at Embreeville, the state did not act affirmatively in placing the residents, so substantive due process rights are not triggered. In support of their argument, defendants place emphasis on the nature of the residents' initial voluntary commitment status.

 Plaintiff argues that there should be no distinction between voluntary and involuntary residents of state mental health facilities. Plaintiff maintains that there is sufficient affirmative state action such that all residents are entitled to these basic constitutional rights. The constitutionally relevant factor, according to plaintiff, is the residents' ...


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