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April 29, 1998

CHRISTINE TODD WHITMAN, Governor of the State of New Jersey; PETER G. VERNIERO, Attorney General of the State of New Jersey; WILLIAM WALDMAN, Commissioner of the Department of Human Services of the State of New Jersey; ALAN KAUFMAN, Director of the Division of Mental Health Services of the Department of Human Services of the State of New Jersey; U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; and PROJECT LIVE, INC., Defendants.

The opinion of the court was delivered by: BISSELL


 BISSELL, District Judge

 This matter comes before the Court on Plaintiffs' motion for a preliminary injunction and on cross-motions to dismiss the Complaint under Fed. R. Civ. P. 12(b)(6) by Defendants Whitman, Verniero, Waldman, and Kaufman ("the State Defendants"), by Defendant-Intervenors New Jersey Protection & Advocacy, Inc. ("NJP&A") and Residents and Prospective Residents of Project Live Community Residences in West Orange, who seek, in the alternative, summary judgment, and by the U.S. Department of Housing and Urban Development ("HUD"), which also seeks dismissal under Fed. R. Civ. P. 12(b)(1). Defendant Project Live joins in the other Defendants' and Defendant-Intervenors' motions to dismiss. Plaintiff-Intervenor the St. Cloud Civic Association joins in Plaintiffs' briefs in support of the preliminary injunction and in opposition to the motions to dismiss.

 Plaintiff filed the Complaint in this action on March 13, 1998. It contains counts titled: " 42 U.S.C. § 1983--Declaratory Judgment and Injunctive Relief-- Procedural Due Process" (Count I), " 42 U.S.C. § 1983--Declaratory Judgment and Injunctive Relief- Substantive Due Process" (Count II), "Declaratory Judgment and Injunctive Relief--Arbitrary and Capricious Nature of Siting" (Count III), "Declaratory Relief-- § 66.1 Void" (Count IV), "Declaratory Judgment--Federal Fair Housing Act" (Count V), "Ultrahazardous Use Without Due Safeguards--Project Live" (Count VI), and "Declaratory Judgment--First Amendment" (Count VII).

 On March 18, 1998, the Court denied Plaintiffs' application for temporary restraints and issued an order to show cause why a preliminary injunction should not be entered. The Court granted motions to intervene by Plaintiff-Intervenor and Defendant-Intervenors on March 23, 1998. By an order entered March 26, 1998, Magistrate Judge Haneke established a schedule for discovery related to the preliminary injunction hearing. Defendants and Defendant-Intervenors appealed to this Court parts of that order that related to disclosure of patient histories. After in camera review of the documents in question, the Court, by order entered April 14, 1998, modified the Magistrate Judge's order to reflect that they would not be disclosed to Plaintiffs.

 The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1367.


 This action relates to the siting of two group homes for people with mental illness in residential neighborhoods in the Township of West Orange. The group homes at issue are located at 97 Edgewood Avenue and 19 Dogwood Drive respectively. (Compl. P 21).

 Plaintiff Township of West Orange is the municipality where the community residences are situated. (Id. P 1). Plaintiff Lauren Massader, who sues individually and on behalf of her infant son Zachary Massader, is a resident of 8 Elf Road, West Orange, which is adjacent to the Edgewood Avenue home. (Id. P 3). Plaintiffs Katherine Howland and Elizabeth Shelley reside at 23 Dogwood Drive, adjacent to the Dogwood Drive home. (Id. P 4). Plaintiff-Intervenor St. Cloud Civic Association represents the St. Cloud neighborhood and residents whose properties are located adjacent and near to the Edgewood Avenue home. (Intervenor Compl. P 1).

 Defendant Christine Todd Whitman is the Governor of the State of New Jersey, allegedly responsible for enforcing the State Constitution and laws. (Compl. PP 7-8). Defendant William Waldman is the Commissioner of the New Jersey Department of Human Services ("DHS"), allegedly responsible for DHS decisions and actions, including the licensing, funding and supervising of community residences. (Id. P 9). Defendant Alan Kaufman is the Director of the Division of Mental Health Services of DHS, allegedly responsible for State decisions relating to state psychiatric hospitals and the implementation of community residences. (Id. P 10). Defendant Peter Verniero is Attorney General of the State of New Jersey, "arguably an essential party because the validity of state law and/or regulation is implicated by this lawsuit." (Id. P 11). These Defendants, the State Defendants, are sued individually and in their official capacities. (Am. Compl. P 1).

 Defendant HUD is the instrumentality of the United States government charged with enforcing the Fair Housing Act and its amendments, 42 U.S.C. § 3601 et seq. (Compl. P 13). Defendant, Project Live, Inc. ("Project Live") is the owner and operator of a number of community residences, including the two specifically at issue in this litigation. (Id. P 14).

 Defendant-Intervenor NJP&A is a non-profit corporation designated by Governor Whitman to provide legal and advocacy services for people with disabilities in the state pursuant to 42 U.S.C. §§ 6041-6043 and §§ 10801-10807. The other Defendant-Intervenors are residents and potential residents of the two group homes at issue here. (Wean Letter, Mar. 17, 1998 (seeking leave to file motion to intervene)).

 Plaintiff's seventy-eight page Complaint *fn1" alleges, at its foundation, that, in connection with the impending closure of Marlboro Psychiatric Hospital, the State Defendants have contracted with Project Live to open two group homes in residential neighborhoods in the Township of West Orange, one at Edgewood Avenue and the other at Dogwood Drive, under a statutory and regulatory scheme that inadequately ensures the safety of the surrounding community and wrongfully denies the community notice and a hearing as to where residences of that type will be located. The Complaint alleges:

The present system (a) arbitrarily includes, for group home-placement, persons with a wide array of mental conditions, including mentally ill sub-populations posing heightened risks of violence[,] with deliberate indifference to the threat to the rights of infant children and others placed in danger by the State as a consequence; (b) fails to perform any analysis of the impact of community residences upon the neighborhoods in which they are placed[,] including a complete failure to consider potential risks to public safety by the specific use proposed; (c) arbitrarily fails to establish or implement security parameters to protect local citizens; (d) deprives citizens directly affected by the placement of these facilities in their communities, and indeed literally adjacent to them in a number of cases, of any notice, information, or any opportunity to be heard regarding the establishment of the facility; and (e) constitutes an arbitrary exercise of the zoning power.

 (Compl. P 18).

 According to the Complaint, the Dogwood Drive home and the Edgewood Avenue home will each house five outpatients from Marlboro. (Id. P 40). The Complaint further alleges, based on "skeletal information provided to the public by Project Live," that "the intended inhabitants of the Two [Dogwood Drive and Edgewood Avenue] Facilities" are persons who "(a) had been involuntarily committed at Marlboro; (b) have been diagnosed with schizophrenia, bipolar disorder (also known as 'manic depression'), 'MICA' (Mentally Ill Chemical Abusers), or depression; and (c) have been unable to handle prior 'outplacements' into similar assisted-care settings." (Id. P 21). With reference to supporting studies and an expert report, the Complaint alleges that people in these three categories pose a heightened risk of dangerousness. (See id. PP 38, 49). In addition, the Complaint alleges that the risk of harm to young children in the neighborhoods of these group homes is especially severe since "children witnessing violence or violence-related activities (such as 'acting out') are especially susceptible to emotional trauma." (Id. P 105).

 The Complaint further alleges, "There will be essentially no security at these Facilities." (Id. P 21). More specifically, it contends, "These group homes will have, as their total measure of 'security,' a single supervisor, probably with no more than a college degree (which degree may or may not be in a category relevant to psychology, and certainly not relevant to security). This attendant will have no true security function; the group-home residents will admittedly be given free and unaccompanied 'run' of the neighborhood, without locked doors, alarms, or any other security measures." (Id. P 38). The Complaint alleges that there is no assurance that this single staff person will have qualifications beyond a college degree and three weeks' training. (Id. P 40).

 Plaintiffs also seek a declaratory judgment and injunctive relief to protect their First Amendment rights. In connection with this claim, the Complaint alleges: "HUD participated with the State Defendants and Project Live at a meeting with area residents where a brochure describing the Fair Housing Act and its enforcement mechanisms were [sic] distributed. This constituted at least an implicit threat of retribution for any opposition to the Project Live Facilities, thus having a chilling effect on the Plaintiffs' right of expression." (Id. P 134).


 I. Standard

 A. Motions to Dismiss

 Fed. R. Civ. P. 12(b)(1) allows motions to dismiss "for lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In disposing of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must operate on the assumption that the factual allegations in a complaint or counterclaim are true. Neitzke, 490 U.S. at 326-27. A Rule 12(b)(6) motion to dismiss may be granted if the opposing party would not be entitled to relief under any set of facts consistent with the allegations in the complaint or counterclaim. As the Supreme Court stated in Neitzke :

nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon, supra, 467 U.S. at 73, 104 S. Ct. 2232, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations.

 490 U.S. at 327. Of course, "a court need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997) (citations omitted).

 Here, both Plaintiffs and Defendants have submitted materials outside the pleadings. This is appropriate since Defendants' and Defendant-Intervenors' cross-motions to dismiss in this matter have been presented at the same time as Plaintiffs' motion for a preliminary injunction. However, Fed. R. Civ. P. 12(b) provides: "If, on a [12(b)(6) motion] to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." Fed. R. Civ. P. 12(b); see also Hilfirty v. Shipman, 91 F.3d 573, 578 (3d Cir. 1996); DeTore v. Local # 245 of the Jersey City Pub. Employees Union, 615 F.2d 980, 983 (3d Cir. 1980).

 The Court agrees with Plaintiffs that it would be premature to consider a motion for summary judgment in this matter. *fn2" However, the Court determines that Defendants' and Defendant-Intervenors' motions to dismiss do not require it to consider documents beyond the pleadings and therefore do not necessitate converting those motions to motions for summary judgment. Accordingly, as the Court indicated in its April 21, 1998 letter to counsel, the Court will exclude from its consideration of the motions to dismiss matters outside the pleadings that have been submitted in connection with the motion for a preliminary injunction. Defendants' and Defendant-Intervenors' motions will continue to be treated as motions to dismiss. (See Letter, Apr. 21, 1998).

 B. Preliminary Injunction Standard

 The Third Circuit has articulated the following standard for a trial court to apply in deciding a motion for a preliminary injunction:

In considering a motion for preliminary injunctive relief, a court must carefully weigh four factors: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of such relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting preliminary relief will be in the public interest.

 SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985); see also AT&T v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994), cert. denied, 514 U.S. 1103, 131 L. Ed. 2d 757, 115 S. Ct. 1838 (1995); Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197-98 (3d Cir. 1990); Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980). The purpose of a preliminary injunction is to preserve the status quo pending an action's final adjudication on the merits. Continental Group, 614 F.2d at 356. An "injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief." AT&T v. Winback and Conserve Program, 42 F.3d at 1427 (citing Opticians Ass'n v. Independent Opticians, 920 F.2d 187, 192 (3d Cir. 1990); Merchant and Evans, Inc. v. Roosevelt Bldg. Prods., 963 F.2d 628, 632-33 (3d Cir. 1992)).

 II. Application

 The Court determines that Plaintiffs' Complaint in its entirety fails to state a claim upon which relief can be granted. Accordingly, Plaintiffs' Complaint will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). The Court will address each of Plaintiffs' claims in turn.

 A. Count I: " 42 U.S.C. § 1983--Declaratory Judgment and Injunctive Relief -- Procedural Due Process" and Count II: " 42 U.S.C. § 1983 -- Declaratory Judgment and Injunctive Relief-Substantive Due Process"

 In Counts I and II of Plaintiffs' Complaint, Plaintiffs seek declaratory judgments and injunctive relief on the basis that the state Defendants have deprived them of their Fourteenth Amendment rights to substantive and procedural due process in violation of 42 U.S.C. § 1983. The claims in both of these counts fail as a matter of law, because Plaintiffs have not alleged any constitutionally cognizable injury.

 In Count I of their Complaint, Plaintiffs claim that the State Defendants' present system and practices deprive them and the other citizens of the State of their "liberty interests in personal security" and their "property interests" "without prior notice and opportunity for a hearing," thereby denying them their right to procedural due process. (See Compl. PP 153-55). They seek a declaratory judgment that the State Defendants may not fund, license, assist or maintain either the Edgewood Avenue home or the Dogwood Drive home, or any other community residences, without prior notice to Plaintiffs and the surrounding community and an opportunity for a hearing for "persons such as plaintiffs whose security and safety interests are affected thereby." (Id. P 157(a)). They also seek preliminary and permanent injunctive relief prohibiting the State Defendants from funding or licensing community residences, including the two group homes at issue in this case, until the State promulgates and implements "(i) procedures for advance notification to municipal officials and persons residing in the surrounding neighborhoods of a proposed community residence, and (ii) proper regulations providing for security and supervision, and listing specific criteria and characteristics of group homes requiring particular levels of security and supervision." (Id. P 157(b)).

 Count II of Plaintiffs' Complaint alleges that the State Defendants' present system of funding and licensing community residences deprives Plaintiffs of their substantive due process rights. Plaintiffs allege that "the citizens of the State, and the Individual Plaintiffs in particular, are deprived of their liberty interests in personal security through arbitrary and capricious policies and procedures, whereby the personal safety of the persons residing in the vicinity of proposed community residences are [sic] knowingly disregarded by the State . . . ." (Id. P 161). They further allege "additionally and in the alternative," that "the Individual Plaintiffs have . . . been placed within a zone of 'state-created danger' depriving them of their liberty interest in personal safety and security." *fn3" (Id. P 162). They state that "the arbitrary approval and funding of community residences without consideration of the impact of the facility upon the surrounding community also constitutes an irrational exercise of the State's zoning powers, and thus constitutes a deprivation of the plaintiff's property interests in violation of plaintiffs' substantive and procedural due process rights." (Id. P 163).

 Again, they seek a declaratory judgment that the State Defendants may not fund or license community residences until the state promulgates procedures and policies for considering the impact on the neighboring community and for assuring adequate safeguards for the community's safety. (Id. P 165(a)). They also seek preliminary and permanent injunctions preventing Project Live from operating either of the two homes and preventing the State Defendants from funding or licensing any community residences, including the two homes, until it promulgates and implements such policies and procedures. (Id. P 165(b)).

 The claims in Counts I and II of Plaintiffs' Complaint are predicated on 42 U.S.C. § 1983. *fn4" "By itself, Section 1983 does not create any rights, but provides a remedy for violations of those rights created by the Constitution or federal law. . . . In order to state a claim, plaintiff[s] must show that defendants, acting under color of state law, deprived [them] of a right secured by the Constitution or the laws of the United States." Morse v. Lower Merion School District, 132 F.3d 902, 906-07 (3d Cir. 1997) (citations omitted).

 The Fourteenth Amendment provides that "no state shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Count I alleges a violation of procedural due process. In Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977), the United States Supreme Court explained:

Application of this prohibition requires the familiar two-stage analysis: We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of "life, liberty or property;" if protected interests are implicated, we then must decide what procedures constitute "due process of law."

 Id. at 672. Here, Plaintiffs' claims fail to implicate a protected interest for procedural due process purposes, so the question of what process is due is moot. In addition, they have failed to allege the deprivation of any rights protected by the Fourteenth Amendment's guarantee of substantive due process.

 At the outset, the Court notes that Plaintiffs have not presented (and the Court has not found) any cases holding that any scheme by which a state supports housing in the community for mentally ill people generally, or for a subset of particularly dangerous mentally ill people as is alleged here, *fn5" implicates the Fourteenth Amendment procedural or substantive due process rights of neighbors or the municipality in which any such housing is located. There simply are no cases where courts have treated conduct of the type alleged here as rising to the level of a constitutionally cognizable injury.

 Plaintiffs claim that the State Defendants have deprived them of amorphous "property interests." "Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .'" Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). Plaintiffs argue that the State Defendants have breached an obligation to consider local interests before making siting and/or licensing decisions, and they state in their Complaint that "the legitimate expectation of this obligation being honored, gives rise to federal and State due process rights in favor of Plaintiffs." (Compl. PP 128-30). The Court determines that, to the extent that the State has any such obligation, it has not been breached here. However, the Court will address this argument below because it apparently forms the basis for Count III of Plaintiffs' Complaint. Plaintiffs have identified no other source for the property interests they allege, and the Court can find none.

 In BAM Historic District Association v. Koch, 723 F.2d 233 (2d Cir. 1983), Plaintiffs alleged that New York City's establishment of a homeless shelter in their neighborhood deprived them of their property rights without due process of law. The Court held that no protected property interest was implicated. Plaintiffs here, like those plaintiffs apparently, "are not claiming that their property has been taken or their use of it so drastically regulated as to destroy its value, see Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922)." 723 F.2d at 237. To the extent that they, like the BAM Historic District Association plaintiffs, claim that "the . . . operation of the [housing] in the vicinity of their property will cause a decline in property values," id., the Court concurs with the assessment of the United States Court of Appeals for the Second Circuit, that "governmental action of that sort has never been held to 'deprive' a person of property within the meaning of the Fourteenth Amendment." Id.

 Plaintiffs also claim to have been deprived of a liberty interest in "personal security." In Ingraham v. Wright, 430 U.S. at 674, a case on which Plaintiffs rely, the Supreme Court recognized that corporal punishment of children in schools implicates a Fourteenth Amendment liberty interest in "personal security" of which a person may not be deprived without due process of law. The Court does not infer from the facts of Ingraham that any such right is implicated by state-supported housing of mentally ill individuals in the community, even where, taking Plaintiffs' allegations to be true, as the Court must on a Fed. R. Civ. P. 12(b)(6) motion to dismiss, inadequate safety precautions are taken and such individuals' past involuntarily commitments, past failures in community settings, or particular diagnoses indicate that they pose a heightened risk of dangerousness to the community. Without more, Ingraham's recognition of a right to personal ...

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