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W.K. v. NEW JERSEY DIV. OF DEVELOPMENTAL DISABILIT

August 18, 1997

W.K., JR., by his parents, W.K and E.K, Plaintiff,
v.
NEW JERSEY DIVISION OF DEVELOPMENTAL DISABILITIES and ROBERT B. NICHOLAS, Defendants.



The opinion of the court was delivered by: PARELL

 PARELL, District Judge

 This matter is before the Court on motion of plaintiff W.K., Jr. ("Bill") for summary judgment and on cross-motion of defendants New Jersey Division of Developmental Disabilities ("DDD") and Robert B. Nicholas, Ph.D. ("Dr. Nicholas") for dismissal, or in the alternative, for summary judgment. For the following reasons, plaintiff's Complaint is administratively dismissed without prejudice.

 BACKGROUND

 Bill, by his parents, W.K. and E.K. (collectively, "plaintiffs") filed this action for damages and injunctive relief under 42 U.S.C. § 1983 *fn1" on November 1, 1996. Plaintiffs contend that defendants' actions have denied Bill his constitutionally guaranteed property rights without affording him either procedural or substantive due process of law in contravention of the Fourteenth Amendment of the United States Constitution. (Compl. P 16.) Bill is a thirty-five year old developmentally disabled adult. DDD is the agency charged with serving people with developmental disabilities in New Jersey. (Id. P 5(A).) Dr. Nicholas is the Director of DDD. (Aff. of Robert B. Nicholas, Ph.D. [hereinafter "Nicholas Aff."] P 1.)

 DDD provides day and residential services to approximately 19,000 individuals with developmental disabilities. (Nicholas Aff. P 2.) There are also approximately 5,000 developmentally disabled individuals on waiting lists for services; approximately 1,600 of which are assigned to the urgent category waiting list for residential services. (Id.) Individuals are placed off the residential waiting list when placements become available, N.J. Admin. Code § 10:46B-4.1, an emergency exists necessitating placement, N.J. Admin. Code § 10:46B-3.3, or when DDD receives a budget initiative to place individuals who have been waiting for residential services. (Nicholas Aff. P 4.) When DDD receives a budget initiative, individuals are placed off the urgent category waiting list chronologically based on their date of assignment to the urgent category. (Id. P 5.)

 Bill was assigned to the urgent category waiting list for residential services on May 20, 1996, pursuant to N.J. Admin. Code § 10:4C-1.13(c), because his parents are over 55 years old. (Id. P 7.) Budget initiatives have been made available for fiscal years 1997 and 1998 in order to place individuals off the urgent category waiting list for residential services. (Id. P 6.) Bill, however, is not eligible for placement pursuant to either the 1997 or 1998 budget initiative because of his recent assignment to the waiting list. (Id. P 8.)

 In May, 1996, because of the increased cost of the Bancroft program, plaintiffs sought to obtain funding from DDD for Bill's residential placement. (Aff. of Herbert H. Hinkle [hereinafter "Hinkle Aff."] P 5; Compl. P 11.) DDD advised plaintiffs in July, 1996, that although Bill was assigned to the urgent category as of May 20, 1996, there were currently no vacancies in appropriate residential programs. (Hinkle Aff., Ex. C: Letter from Bernard B. Blanks, Assistant Regional Manager.) Plaintiffs, in response, advised DDD "that the family appeals the failure to provide appropriate services" and requested a settlement conference. (Id., Ex. D: Letter from Herbert D. Hinkle.)

 DDD subsequently wrote back to plaintiffs and informed them that because: (1) Bill was recently assigned to the urgent category and therefore not eligible for the fiscal year 1997 waiting list initiative; (2) there are approximately 1,500 persons assigned to the urgent category; and (3) these material facts are not disputed, DDD concluded that the matter did not require administrative fact finding. (Id., Ex. E: Letter from Robert B. Nicholas, Ph.D.) DDD did, however, offer to schedule a meeting with plaintiffs to "give [plaintiffs] an opportunity to present additional facts" prior to taking any final action on their request. (Id.) DDD further noted that it would reevaluate the situation based upon the information plaintiffs provided at the meeting and that following the meeting, it

 
may determine that there are factual matters in dispute requiring the application of the administrative appeals process or that exceptional circumstances exist which necessitate placement prior to those individuals who have been assigned to the Urgent Category longer [than Bill]. Facts may also be presented at the meeting which cause the Division to determine that an emergency need for placement exists. If this occurs, emergency placement will be offered pursuant to N.J.A.C. 10:46B-3.3.

 (Id.)

 Plaintiffs did not schedule a meeting as DDD suggested. Instead, plaintiffs' counsel determined that DDD's refusal to transmit the matter for a hearing before the Office of Administrative Law ("OAL") was "a gross and blatant denial of due process" and that if DDD did not change its position, plaintiffs would seek a court order compelling DDD to grant such a hearing. (Id., Ex. F: Letter from Herbert D. Hinkle.)

 Notwithstanding this threat, DDD did not refer the matter to the OAL for a hearing. Rather, it informed plaintiffs that it stood by its original determination that there are no material facts in dispute, and therefore that no fact finding is needed. (Id., Ex. G: Letter from Robert B. Nicholas, Ph.D.) Once again, however, DDD invited plaintiffs to meet with its representative to present any additional facts or to identify those material facts that plaintiffs ...


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