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Torisky v. Schweiker

April 28, 2006

DANIEL TORISKY, AS GUARDIAN OF HIS SON EDWARD A. TORISKY; LAURA MOONEY, AS GUARDIAN OF HER SISTER SUSAN RILEY; KENNETH AMMONS, AS GUARDIAN OF HIS SON KENNETH AMMONS, JR.; ALBERT BAUMGARTNER, AS GUARDIAN OF HIS SON GEORGE BAUMGARTNER; CHARLES CIHIL, AS GUARDIAN OF HIS SON RICHARD CIHIL; PATSY CONCA, AS GUARDIAN OF HIS SON MARIO CONCA; JOAN CONNORS, AS GUARDIAN OF HER SISTER HELEN CONNORS; PETER DEMCZYK, AS GUARDIAN OF HIS SON MAX DEMCZYK; GUY DI MARZIO, AS GUARDIAN OF HIS BROTHER CARLO DI MARZIO; ALDO GIANNINI, AS GUARDIAN OF HIS SON RONALD GIANNINI; MAUREEN PUSKAR, AS GUARDIAN OF HER SISTER DOROTHY KOHUT; JON LACKMAN, AS GUARDIAN OF HIS SISTER ELIZABETH LACKMAN; CHARLES MILLER, AS GUARDIAN OF HIS DAUGHTER DIANNE MILLER; MARY PASINSKI, AS GUARDIAN OF HER BROTHER JOSEPH PASINSKI; JEANNE CLAUS, AS GUARDIAN OF HER SON WILLIAM SCHWARTZ; KENNETH SMITH, AS GUARDIAN OF HIS SON LARRY SMITH; GERTRUDE SMORADA, AS GUARDIAN OF HER SON DENNIS SMORADA; JOHN TESTA, AS GUARDIAN OF HIS DAUGTHER CHRISTINE TESTA; GERALD WARD, AS GUARDIAN OF HIS DAUGHTER SHARON WARD; DIANE WRANA, AS GUARDIAN OF HER DAUGHTER CHRISTINE WRANA; WALTER BARANOWSKI, AS GUARDIAN OF HIS SON LEON BARANOWSKI; JAMES E. FORD; PEGGY FORD, AS GUARDIANS OF THEIR SON WILLIAM FORD; NAOMI DA PRA, AS GUARDIAN OF HER SISTER MARION HEMMIS; EUGENIA KOLESSAR, AS GUARDIAN OF HER SON GARY KOLESSAR; JOANNE MARTIN, AS NEXT FRIEND OF HER SON KEVIN PATTERSON; GREGORY UNDERWOOD; MARGARET UNDERWOOD, AS GUARDIANS OF THEIR SON MICHAEL UNDERWOOD
v.
MARK S. SCHWEIKER, AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; FEATHER O. HOUSTOUN, INDIVIDUALLY, AND AS SECRETARY OF THE DEPARTMENT OF PUBLICWELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; NANCY R. THALER, INDIVIDUALLY, AND AS DEPUTY SECRETARY OF THE PENNSYLVANIA OFFICE OF MENTAL RETARDATION PENNSYLVANIA PROTECTION AND ADVOCACY, INC.; ARC ALLEGHENY; ARC PENNSYLVANIA (INTERVENORS IN D.C.) FEATHER O. HOUSTOUN AND NANCY R. THALER, APPELLANTS



On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civil Action No. 02-cv-00499) District Judge: Hon. Joy F. Conti.

The opinion of the court was delivered by: Stapleton, Circuit Judge

PRECEDENTIAL

Argued January 25, 2006

BEFORE: McKEE and STAPLETON, Circuit Judges, and POLLAK,*fn1 District Judge.

OPINION OF THE COURT

This appeal presents the issue of whether a state's affirmative duty under the Due Process Clause to care for and protect a mental health patient in state custody depends upon the individual's custody being involuntary. Contrary to the District Court's resolution of this issue, we conclude that the state does not owe the affirmative duties of care and protection first enunciated in Youngberg v. Romeo, 457 U.S. 307 (1982), to those individuals who are free to leave state custody. We will affirm the District Court's order denying appellants' claim to qualified immunity, however, because resolution of that claim should await fuller development of the record.

I.

The plaintiffs are the guardians of twenty adult individuals with mental retardation who formerly resided at Western Center, a mental retardation institution operated by Pennsylvania's Department of Public Welfare ("DPW").*fn2 On April 11-12, 2000, DPW closed Western Center and transferred its remaining residents, including the plaintiffs in the present litigation, to privately operated facilities. At the time of the closing, the plaintiffs were "unwilling to be transferred to placement in community facilities of any type," "medically and developmentally inappropriate for community placement," "medically and mentally fragile, especially when removed from their familiar institutional surroundings," "in need of continuous care by on-site multidisciplinary staff," and "in need of continuity of placement; stability, and therapeutic access to family." Am. Compl. ¶ 9.

In the course of the transfer, "a physical blockade was set up by state police at Western Center to separate plaintiffs from their parents, guardians, relatives and other loved ones." Id. at ¶ 40. "Against each plaintiff's will, each was prevented from making physical contact with any individual on the other side of the blockade; was ordered into and placed within a bus or van at Western Center, and was then transported to various placements several hours away." Id. at ¶ 41. Plaintiffs allege that state employees utilized "[p]hysical and psychological force" and that the plaintiffs "suffered severe physical and psychological damage in the forced, involuntary transfer from Western Center." Id. at ¶¶ 18, 42.

The plaintiffs, through their guardians, filed suit in the Middle District of Pennsylvania alleging violations of 42 U.S.C. § 1983 and other federal and state statutes. In their complaint, the plaintiffs allege that the defendants violated their "constitutional life and liberty interest in . . . appropriate placement and appropriate medical and therapeutic treatment from the state of Pennsylvania." Id. at ¶ 12. They further allege that the individually named defendants, including Feather Houston, the Secretary of DPW, and Nancy Thaler, the Deputy Secretary, "were personally responsible for the decision to transfer each plaintiff." Id. at ¶ 43.

Based on these allegations, plaintiffs sought injunctive relief under the Due Process Clause. In Count V, the only claim currently before us, the plaintiffs sought monetary damages from the individual defendants Thaler and Houston based on the same due process violation.

The defendants moved to dismiss, asserting, inter alia, that defendants Houston and Thaler were protected by qualified immunity from plaintiffs' damage claims. The District Court viewed the issue as whether the substantive due process rights to care and protection possessed by "involuntarily committed residents in state facilities" under Youngberg v. Romeo, 457 U.S. 307 (1982), "are clearly established as extending to voluntarily committed persons." App. at 30-31. The District Court concluded that it was clearly established that such due process protections do extend to those who are voluntarily committed and denied the motion. We will affirm the order of the District Court, albeit for a different reason.

After Houston and Thaler filed this interlocutory appeal, the plaintiffs failed to enter an appearance or file a brief. Houston and Thaler are entitled to pursue their appeal, however, and we are required to proceed without the benefit of an appellee's brief. United States v. Everett, 700 F.2d 900, 902 n.5 (3d Cir. 1983) ("If an appellee after proper notice fails to file a brief, then we may decide the case on the brief of the appellant only."); 16A ...


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