author: CAFFREY, Chief Judge.

text:
    John DOE, by His Mother and Next Friend, Mary ROE, and Christopher Hansen, on Behalf of Themselves and All Other Individuals Similarly Situated, Plaintiffs, v. Charles W. GAUGHAN, in His Capacity as Superintendent of Bridgewater State Hospital, Michael Fair, in His Capacity as Commissioner of Correction, Defendants.
    Civ. A. No. 82-3811-C.
    United States District Court, D. Massachusetts.
    Sept. 23, 1985.

      Fine & Ambrogne, Roderick MacLeish, Jr., Boston, Mass., John L. Ciardi, Susan B. Tuchman, for plaintiffs.
    Alexander G. Gray, Asst. Atty. Gen., Boston, Mass., for defendant Michael S. Dukakis.
    John W. Bishop, Jr., Spec. Asst. Atty. Gen., Dept, of Correction, Boston, Mass., for defendants Fair & Gaughan and King.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil matter which was tried to the Court sitting non-jury. The plaintiffs, John Doe and Christopher Hansen, respectively are a present and a former patient of Bridgewater State Hospital (“Bridgewater”) in Bridgewater Massachusetts. The defendants are Charles W. Gaughan, superintendent of Bridgewater, and Michael Fair, the Massachusetts Commissioner of Correction. The plaintiffs contend that the circumstances of their involuntary confinement at Bridgewater is violative of their Fourteenth Amendment due process and equal protection rights, and is thereby actionable under 42 U.S.C. § 1983. The plaintiffs seek injunctive relief to bring the care and treatment of John Doe up to constitutional standards, and declaratory relief to the effect that Christopher Hansen had been unconstitutionally confined at Bridge-water.

The plaintiffs’ case is comprised of two identifiable sets of claims. The first centers around the statutory framework and administrative structure of Bridgewater. In essence, the plaintiffs contend that their confinement in Bridgewater is unconstitutional because as civilly-committed mental patients they are confined with persons serving sentences for criminal convictions in an institution operated by the Commissioner of Correction. This circumstance, claim the plaintiffs, gives rise to two constitutional deprivations: (1) that the care and treatment available at Bridgewater is inferior to that provided in other Massachusetts mental institutions, thereby depriving the plaintiffs of equal protection of the laws and, (2) that the nature and duration of the plaintiff’s commitment to Bridgewater does not bear a reasonable relation to the purpose for which they were committed, thereby depriving them of their due process liberty interests as articulated in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).

The second set of claims has to do with the actual conditions of confinement at Bridgewater. The plaintiffs contend that due to overcrowding, understaffing, and the lack of properly trained staff Bridge-water fails to deliver “minimally adequate or reasonable” care and training as described in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). They further contend that this deficiency lengthens the duration of the resident’s commitment and increases the amount of time that the residents are secluded or placed in restraints. All this, goes the argument, is in derogation of the plaintiff’s liberty interest in freedom from confinement, freedom from unnecessary bodily restraint, and freedom from confinement in unsafe conditions.

After considering all of the testimony and evidence introduced at the trial, as well as the stipulations of fact and all other written submissions, I find and rule as follows:

BRIDGEWATER

1. Bridgewater State Hospital is a part of the Massachusetts Correctional Institution at Bridgewater, and is administered by the Massachusetts Department of Correction (“DOC”) pursuant to M.G.L. c. 125 § 18. Michael Fair is the Commissioner of Correction, and Charles Gaughan was the superintendent of Bridgewater at all material times.

2. Psychiatric and clinical services are provided to most Bridgewater residents by McLean Hospital Corporation (McLean) personnel working under contract with the DOC. The remaining residents are served by another contractor, Goldberg Medical Associates.

3. There are several state statutes pursuant to which persons may be admitted to Bridgewater for observation and evaluation or committed for a longer term. With one minor exception; all such admissions or commitments are by state court order. No person may be committed to Bridgewater except upon a finding, beyond a reasonable doubt, that “(1) such person is-mentally ill, (2) such person is not a proper subject for commitment to any facility of the department [of mental health]; and (3) the failure to retain such person in strict custody would create a likelihood of serious harm.” M.G.L. c. 123 § 8(6)

4. The Bridgewater population consists of the following categories of persons:

(a) criminal defendants ordered to Bridgewater for evaluation to determine competency to stand trial or criminal responsibility. M.G.L. c. 123 § 15(6).

(b) persons found incompetent to stand trial or not guilty by reason of insanity where the committing court has made the findings required by § 8(6). M.G.L. c. 123 § 16.

(c) convicted criminals sent to Bridgewater for evaluation as an aid in sentencing where the committing court has made the findings required by § 8(6). M.G.L. c. 123 § 15(e).

(d) pretrial detainees or persons serving criminal sentences where the committing court has made the findings required by § 8(6). M.G.L. c. 123 § 18(a).

(e) persons transferred to Bridgewater from a department of mental health facility on an emergency basis and for a period of no more than 5 days where the superintendent of a Department of Mental Health (“DMH”) facility determines that failure to retain him in strict custody would create a likelihood of serious harm.

5. As of August 14,1984 the population of Bridgewater, broken down by place of origin, was as follows:

Originating From Number Percent
DMH 84 18.2%
Correctional Facility-166 36.0%
Court 211 45.8%
461 100.00%

6. A statistical breakdown of the Bridgewater population by the statutory section is as follows:

As of 8/14/84 As of 11/14/84

Statutory Section Number Percent Number Percent

15(b) 70 15.1% 75 15.4%

16(a) 7 1.5% 12 2.5%

15(e) 40 8.6% 39 8.0%

18(a) 48 10.3% 54 11.1%

13 7 1.5% 7 1.4%

17(a) 3 .6% 4 .8%

16(b), (c) 94 20.3% 88 18.1%

18 90 19.4% 83 17.1%

8 105 22.6% 124 25.5%

464 100.0% 486 99.9%

7. As a result of the statutory scheme governing commitments to Bridgewater, the institution houses the most violent, troublesome mental patients in Massachusetts. Many of these patients are sent to Bridgewater because other mental health facilities, including prestigious private hospitals such as McLean Hospital, have found them to be unmanageable. Some 75-80% of Bridgewater inmates have major mental illness or psychotic disorders. Twenty percent of the residents have taken a human life.

8. Civil patients are more likely to be dangerous and unmanageable than those serving criminal sentences. Many civil patients have committed multiple violent criminal acts but have not been convicted of any crime. Of those patients at Bridge-water who have taken a human life, more than half are there on the basis of a civil commitment.

9. Due to the nature of its population, Bridgewater has a “correctional ideology” in the sense that it provides strong external controls to patients. Many patients benefit from the “protective envelope” of correction officers because these patients often fear losing self-control with resultant harm to themselves or others. The presence of uniformed correction officers is therefore of therapeutic value to those patients. Moreover, this protective envelope provides a remarkably safe environment given the character of the patients. There have been no murders in Bridgewater in the last eight and a half years, and only five or six suicides. Given the number of men in Bridgewater who have taken life, this is an extraordinary record.

10. Despite this “correctional ideology” Bridgewater is not a prison. It differs from a correctional institution in that it is more concerned with mental illness and provides a more caring and nurturing environment. Staff concern for the resident’s well being has produced an environment which is safer than a prison, generally weapon-free, and in which much more attention is directed to combatting illicit drug use than in a prison.

11. Bridgewater provides several educational and vocational programs for the benefit of the residents. The educational needs of the institution are met by an in-house school consisting of four teachers and a principal. Elementary through high school classes are taught, as well as GED, and special education programs for persons with learning disabilities. There are also night school, summer school, and college courses offered at Bridgewater through Massasoit Community College. Bridgewater maintains an 8,000 volume library which is available to residents. The institution also employs a full-time artist who works with patients. In addition, there is a carpentry program, an in-house maintenance program, and a seal program in which inmates collate materials for the March of Dimes.

12. Bridgewater also provides a number of recreational activities, including softball, basketball, volleyball, whiffleball, ping pong and bowling. Volunteers come in from outside the institution to participate in the softball and basketball programs. A gym is available to inmates on a regular basis. The Recreation Department of the institution is composed of three correction officers who work regular shifts and are designated as recreation officers. Volunteers from the community sponsor special events such as Saturday night concerts, square dancing, movies, and beano. An organization called New Life Group conducts a religious program.

13. Other non-clinical special programs include Alcoholics Anonymous and Schizophrenics Anonymous.

14. Over 1,000 patients are admitted to Bridgewater annually. In recent years, the population of the institution has risen steadily from under three hundred and sixty men in February of 1981 to four hundred and ninety men in December of 1984. In April of 1985 the census peaked at five hundred and sixteen patients, but had been reduced to four hundred and seventy patients as of May 29, 1985.

15. Although some of the Bridgewater facilities were designed to accommodate a population of five to six hundred, other parts of the institution have become crowded with the present population of four hundred fifty to five hundred residents. This crowding has had a deletérious effect upon Bridgewater’s ability to deliver certain services to residents. Specifically, the lack of space for nurses and other treatment team members to irieet in has hampered implementation of the treatment team concept. Crowding has also reduced the personal space available to each resident, and tends to cause increased conflict and tension between residents with the result that some patients might withdraw and become sicker. The abuse of some patients by more aggressive patients, known as “strong-arming,” is more likely to occur in these crowded conditions. Generally it has become more difficult for the institution to carry out clinical activities such as one-to-one therapy or group therapy.

16. The Bridgewater staff consists of clinical M.D.’s and Ph.D.’s, social workers, nurses, correction officers and other administrative and support personnel. The patient care staff, including correction officers, are organized into treatment teams which meet weekly to review each patient’s status.

17. Several professional positions, although authorized, have not yet been filled. Moreover, the number of correction officers actually on duty within the institution has actually declined since 1981, while the number of residents has risen. At present levels, Bridgewater is understaffed in several areas. This, coupled with the increase in population, has resulted in a decrease of staff time available to patients. Additionally, it has become more difficult for staff, particularly correction officers, to attend treatment team meetings because of the increased demands of the growing population. The morale of correction officers has suffered due to the combination of crowding and understaffing.

18. Nevertheless, the present staffing is adequate to provide minimally adequate care to Bridgewater patients. The primary professional disciplines providing services at Bridgewater are clinical psychiatry, psychology, and social work. Each discipline has a caseload of less than sixteen, which permits a professionally credible and defensible level of care to be delivered. Staff to patient ratio, is, however, not the sole determinant of the quality of care delivered in an institution.

19. The McLean staff which serves Bridgewater is highly competent and the evidence suggests that no other security institution in the country can match the quality of the Bridgewater staff.

20. The correction officers at Bridgewater are responsible for the day-to-day care and custody of the residents. All Bridge-water officers receive a course of training which includes a total of seven weeks of classroom work and three weeks of on-the-job training. The classroom training is identical to that which all correction officers undergo and has little to do with mental health issues. This training is, however, relevant to the correction officers’ function in maintaining security and order among a dangerous and violent population. The three weeks of on-the-job training includes a familiarization period during which the officers are assigned to a psychologist and a social worker from the McLean staff who instruct the officers on the clinical aspects of their duties. In addition to this mandatory training, some eighty-four junior and senior correction officers attended a Psychiatric Orientation Program in the spring of 1983. Since that time, however, there has been no further in-service training for Bridgewater officers.

21. The correction officers at Bridgewater tend to remain on the job longer, and are paid more than, Mental Health Aides (“MHA”) who perform comparable duties in Department of Mental Health facilities. Generally, the correction officers are assigned to a regular shift and location, which enables them to become familiar with the patients and their individual needs. In many cases, correction officers and patients develop long-term relationships which provide beneficial stability to the patients’ lives.

22. Plaintiff John Doe, who has been diagnosed a chronic schizophrenic, presently resides at Bridgewater State Hospital. He is an extremely mentally ill individual. He frequently and unpredictably assaults others and often abuses himself. He has been known to bang his head against the wall and to attempt to gouge out his eyes. He is probably the most seriously mentally ill man in Massachusetts. I find that it is extremely unlikely that Mr. Doe will ever recover sufficiently to be able to live outside of a mental institution.

23. Doe was first institutionalized in 1970 at the Massachusetts Mental Health Center (“MMHC”). There followed a series of six more admissions to MMHC through 1978. During this period, Doe was admitted several times to a psychiatric program at Massachusetts General Hospital (“MGH”). Both MGH and MMHC are Harvard-affiliated teaching facilities and among the premiere training and research institutions in the country.

24. MMHC enjoys a higher staff to patient ratio than Bridgewater, yet MMHC found it necessary to transfer Doe to Bridgewater because of the security available there.

25. During the time he was an in-patient at MGH, John Doe received extensive attention, including extraordinary drug treatment and individual therapy. Nonetheless, his condition deteriorated steadily to an extremely primitive, regressive, disturbed plateau. It was in this condition that he arrived at Bridgewater on January 13, 1978.

26. John Doe is presently housed in Bridgewater’s medical unit (“MU”). The MU tends the needs of patients requiring medical attention for problems such as broken limbs or insulin monitoring. The unit also houses patients who for one reason or another are unable to mix with the population of the institution in any other unit. These patients include: mentally retarded persons, persons in restraints, the very young and the very old.

27. Since he has been at Bridgewater John Doe has been frequently restrained by means of a gerry chair (a wheelchair with straps) or by the use of two and four point restraints. At other times he has been secluded in a room which is locked from the outside. Frequently when the door is not locked, Doe remains alone inside his room by his own choice.

28. Restraint and seclusion may be imposed at Bridgewater by correction officers only upon authorization of the professional staff, or in case of emergency. These controls' are used in response to both assaultive behavior and some non-assaultive but environmentally disruptive behavior, such as uncontrollable screaming, public masturbation or human excrement smearing on walls and elsewhere. Correction officers may not institute seclusion or restraint on their own initiative, but may remove previously authorized restraints if it appears that restraints are no longer necessary. I find that as described, Bridgewater’s use of restraint and seclusion is well within the parameters of professional judgment.

29. During Doe’s later admissions to MMHC, he had been secluded a great deal of the time. At Bridgewater, he continued to be secluded. Beginning in the spring of 1982 Doe’s seclusion decreased to approximately 50% of the time. This period of reduced seclusion corresponded with a period of individual therapy performed by Dr. Eugenio Chavez-Rice (“Dr. Rice”), who left the Bridgewater staff in the fall of that year. Subsequently, Mr. Doe spends about the amount of time in seclusion as before, which is approximately 75%. A portion of this time in seclusion is voluntary, as the door is unlocked.

30. The time that Mr. Doe spent in restraints increased from the time of his admission to 1980, and then decreased during Dr. Rice’s therapy. Mr. Doe has been substantially free from restraints for the last six months before this trial.

31. Professional opinion varies as to whether this reduction in seclusion and restraint represents an actual period of improvement in Doe’s condition. Doe’s clinical history has been one of temporary ups and downs, making it difficult to determine whether any apparent improvement is a response to treatment or merely due to the natural course of the illness. Although Dr. Rice’s physician’s notes tend to support the improvement theory, records and reports kept by other staff members reveal that Doe was as assaultive and violent during this period as before. Accordingly, I rule that plaintiffs have failed to prove that Doe’s condition improved in fact as a result of treatment by Dr. Rice.

32. In isolated incidents, Mr. Doe was the victim of abuse at the hands of the correction officers who were on duty in his unit. I find that on October 5, 1982 a correction officer entered Doe’s room and taunted him with a plastic whiffle ball bat while he was in restraints on his bed. After an investigation of this incident by the DOC, the entire shift of correction officers who had been on duty at the time were transferred out of the unit. On other occasions, correction officers called Doe by his first name when they knew that such first name use would enrage him. This conduct was, of course, non-therapeutic and not calculated to serve John Doe’s best interests. I find that such conduct was, however, not characteristic of the officers in charge of Doe, nor was it condoned by the clinical or correction staff at Bridgewater, who took prompt investigatory and remedial action upon learning of the incidents.

33. Bridgewater correction officers maintain their own records on what are called “hard cards.” These cards are passed from shift to shift and are intended to convey information about the status of the patients on the ward. Some of these cards reflect comments that describe John Doe’s condition in nonclinical terms, i.e., he “went nuts” or is “nasty.” Other cards reflect a weak attempt at humor: “[John Doe] cited many times for driving his wheelchair to endanger____” Still other cards bear unreservedly objectionable comments such as: “[John Doe] is a good candidate for euthanasia.” Unfortunate though these comments may be, particularly the last quoted, there is no evidence that they had an adverse impact on John Doe’s care and treatment. Moreover, it appears that he never knew of the comments, so they could not have had any adverse emotional impact on him.

34. The MU, where plaintiff Doe is housed, is crowded when more than 30 patients are housed there. The average census for the unit is generally over that figure. This crowding has an impact on plaintiff in that it reduces the amount of time that Doe may spend out of his room. Additionally, the MU becomes quite busy weekday mornings because residents of other Bridgewater units come into MU for clinics and other services. This additional activity further reduces the time that Doe is likely to be able to tolerate being outside of his room.

35. Although Doe’s circumstances at Bridgewater have been less than ideal, the overall level of care and treatment afforded him has been adequate, and in some instances, extraordinary. I note that the several modalities of treatment employed include extensive drug therapy, family therapy, dietary analysis, endocrine analysis, hourly behavior analysis and one-to-one personal interaction with a ward worker, a psychology intern, and certain correction officers. With respect to drug treatment, nationally-known physicians were brought in on a consulting basis. It is unlikely that any other security institution in the country could call upon more prestigious, senior, recognized or knowledgeable physicians than those employed in treating John Doe.

36. The plaintiffs produced expert testimony to the effect that the drug program was not proper treatment for a patient in Doe’s condition, and that other approaches should have been tried. Due to the considerable credible evidence to the contrary, I rule that the plaintiffs have merely established that there is professional disagreement with respect to the preferred mode of treatment for this singularly difficult patient. Nevertheless, I find that all standard modes of treatment have been attempted, as well as several extraordinary ones. In this respect, I find that Doe’s care has exceeded what many professionals regard as a minimum standard of care.

37. The treatment plan drawn for Doe on June 15, 1984 is well within professional standards. Given Doe’s deteriorating condition over the previous fourteen years and that many methods of treatment have proven unsuccessful, this plan realistically focuses on Doe’s primitive levels of functioning.

38. Doe’s medical record contains occasional suggestions that individual therapy might again be attempted. In light of the fact that prospects for successful therapy are generally better during the earlier stages of this illness, that individual therapy has failed in the past, and that John Doe is presently in an unresponsive and unpredictably assaultive state, I find that it is unlikely that such therapy would meet with success. Accordingly, I find Bridgewater’s failure to implement a program of individual therapy in recent years is not a departure from generally accepted professional standards.

39. It is unlikely that any program, plan, or treatment beyond that which has already been provided by Bridgewater could or would reduce the amount of time which Mr. Doe spends in restraints or in seclusion. Again, plaintiffs evidence that other approaches are available merely reflects a divergence of professional opinion as to which is the preferred course. Moreover, I rule that the plaintiff has produced no credible evidence that such alternative modalities of treatment have a realistic likelihood of success in the sense that they would probably result in a meaningful improvement in the quality of John Doe’s life.

CHRISTOPHER HANSEN

40. Plaintiff Christopher Hansen was admitted to Bridgewater in May, 1978 and August 1980, and was in the institution for a total of approximately three and one-half years. At the time of his second commitment he was diagnosed as having a manic depressive disorder. He was angry and belligerent and had assaulted several persons prior to his commitment.

41. During Hansen’s commitment he was secluded several times for assault and for possession of contraband.

42. From November 1980 to May 1981 Hansen received one-to-one psychoanalytical treatment from a McLean social worker intern, from which he derived some benefit. He was also treated with lithium, which is recognized as a primary treatment for this disorder.

43. At present, Mr. Hansen is not an inmate in any institution and is working and married.

44. Insofar as Bridgewater played an important role in returning Hansen to society, I find that it delivered more than minimally adequate care. In making this finding, I note that plaintiff’s evidence to the contrary rests upon speculation as to what might have occurred if Hansen were treated differently. The defendant’s evidence, on the other hand, is supported by the fact that this formerly assaultive young man now is able to live an apparently normal, productive life. In weighing the conflicting expert testimony as to whether Bridgewater’s treatment was professionally acceptable, I find that this fact tips the balance in favor of the defendants.

RULINGS OF LAW

The plaintiff’s first set of claims attacks the Massachusetts statutory scheme which permits civilly committed mental patients to be placed in an institution operated by the DOC together with persons who are serving sentences for criminal convictions.

It is true that “due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). Plaintiffs, citing the New York case of Kesselbrenner v. Anonymous, 33 N.Y.2d 161, 350 N.Y.S.2d 889, 305 N.E.2d 903 (1973), argue that the mix of civil and criminal patients in Bridgewater is a per se violation of this “rational relationship” requirement.

Without adopting Kesselbrenner as an accurate statement of governing constitutional law, I note that it is inapposite to the present case for several reasons. First, the plaintiff in Kesselbrenner was a civilly committed individual who was placed in Matteawan State Hospital, which is described as a “correctional facility primarily for mentally ill convicted criminals.” 350 N.Y.S.2d at 890, 305 N.E.2d 903. The court in Kesselbrenner found that Matteawan had been “allowed to falter” and to “drift into decline as a pioneer mental hospital and into constantly improved status as a security institution.” Id. at 893, 305 N.E.2d 903. The patients at Matteawan are subject to penal restrictions upon basic liberties such as correspondence, visitors and access to the outside which are not related to their status as mental patients. Id. Obivously, a civil patient thrust into this overwhelmingly penal atmosphere would suffer deprivations of liberty in excess of that which the purpose of his commitment would require.

In contrast, Bridgewater serves a broader spectrum of patients, all of whom, convicted or civil, meet the same criteria. With the exception of § 13 emergency transfers from DMH facilities, no person may be committed to Bridgewater unless: “(1) such person is mentally ill; (2) such person is not a proper subject for commitment to any facility of the department [of mental health]; and (3) the failure to retain such person in strict custody would create a likelihood of serious harm.” M.G.L. c. 123 § 8(b). Thus, the Bridgewater population is defined in terms of the patient’s need for institutionalization and society’s need to isolate dangerous individuals. See Santana v. Collazo, 714 F.2d 1172, 1176 (1st Cir.1983), cert. denied — U.S. -, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984) (society may legitimately confine individuals solely to protect itself from them).

To the extent that Bridgewater has adopted a “correctional ideology” I find it is necessitated by the dangerous character of the patients. There is no evidence before the court that the plaintiffs have suffered any loss of freedom because they were confined with convicted criminals. Rather, there is evidence which would allow the court to find that the security measures extant at Bridgewater are even more appropriate to civil patients, who are more likely to be aggressive, violent, and unmanageable. Plaintiffs Doe and, to a lesser extent, Hansen were both such violent, assaultive individuals for whom the strict security of Bridgewater was appropriate.

Bridgewater also differs from Matteawan in that it offers a host of educational, recreational, rehabilitative and vocational programs to its patients. This is additional evidence that the institution does not deprive its patients of liberty although some are serving criminal sentences. I note in this context that although only approximately 25.5 percent of Bridgewater’s patients are “civilly committed” by plaintiff’s definition, another 23% of the patients are not serving criminal sentences, nor are they at Bridgewater for forensic evaluation pending criminal prosecution. Only 36% of the Bridgewater population has been transferred to the institution from correctional institutions. With these figures in mind, it is clear that Bridgewater is not an institution that targets its programs and services for a penal population.

The statutory scheme pursuant to which civil patients are committed to Bridgewater may be distinguished in another aspect from the New York statute challenged in Matteawan. Section 8(b)(2) of Chapter 123 of the Massachusetts General Laws provides that no person may be sent to Bridge-water unless he is found not a proper subject for commitment to a facility operated by the Department of Mental Health. The New York statute in Kesselbrenner contained no such provision, leaving open the possibility that civil patients might be transferred into the highly restrictive Matteawan environment when less restrictive institutions were available. In Massachusetts, only those patients who require the strict security of Bridgewater may be sent there. This is in keeping with the constitutional requirement that state curtailments of individual liberties be accomplished through the least restrictive means available to accomplish a legitimate state purpose. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).

The plaintiffs also look to the recent federal case of Lynch v. Baxley, 744 F.2d 1452 (11th Cir.1984), for support. Even a summary examination of the facts in Lynch is sufficient to distinguish it from the present case. In Lynch, the state of Alabama used jails to hold persons awaiting involuntary commitment proceedings. Conditions in these jails were “desperate,” worse even than Alabama prisons, let alone mental institutions. Id. at 1460. Because such persons were held in worse conditions than they would have been subject to if committed, the scheme was an obvious violation of the Jackson “rational relation” standard and the Shelton “least restrictive means” requirement. Without restating the facts, it is clear that this is not the situation at Bridgewater.

I rule, therefore, that the state action in confining civilly committed mental patients in Bridgewater together with mental patients serving criminal sentences is not a per se violation of the plaintiffs constitutional rights.

The plaintiffs’ second set of claims concern the conditions at Bridgewater, claiming that these conditions violate the plaintiff’s Fourteenth Amendment rights as set forth in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Specifically, the plaintiffs seek to prove that Bridgewater has failed to confine them in safe conditions, and has failed to exercise professional judgment with respect to their care, treatment, and restraint.

As to the safety component of the plaintiffs’ claim, it is sufficient to say that this Court has heard no credible evidence to warrant a finding that Bridgewater is unsafe. In fact, given the nature of the population, I find that Bridgewater is a more safe institution than one would expect.

With regard to the remaining grounds, the Supreme Court has never identified a per se constitutional right to treatment. A mentally ill person is entitled to only so much treatment as is minimally adequate or reasonable to ensure safety and freedom from undue restraint. Id. at 319, 102 S.Ct. at 2459. Such treatment is not an end in itself, but is rather a means of enhancing the liberty interest of a confined individual. Id. A mentally ill or mentally retarded person does not, however, have an unbridled right to liberty. The state may curtail such liberties only where necessary to protect others or the patient himself. Id. at 320, 102 S.Ct. at 2460. “The question then is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint ... is such as to violate due process.” Id. The line of demarkation between acts which violate due process and those which do not is whether the action taken was “reasonable,” i.e. whether the decision was based upon the exercise of professional judgment. Id. at 323, 102 S.Ct. at 2462.

Courts are to adopt a deferential standard in reviewing restraint and treatment decisions which:

“... if made by a professional, [are] presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person actually did not base the decision on such a judgment.”

Id. at 323, 102 S.Ct. at 2462.

A professional decisionmaker is “a person competent, whether by education, training or experience, to make the particular decision at issue.” Id. at 323 n. 30, 102 S.Ct. at 2462 n. 30. In the context of Bridgewater, this means that long-term treatment decisions should be made by psychiatrists and psychologists, but that short-term or emergency decisions may be made by correction officers.

Plaintiffs challenge Bridgewater’s use of restraints and seclusion on the grounds that they have been applied upon the initiative of correction officers; that they have been applied for non-therapeutic reasons, including the convenience of the staff; and that they have been used excessively. There is evidence in the record that restraints and seclusion were, at one time, applied at the discretion and initiative of correction officers. This might well constitute a substantial departure from professional standards. That time has passed and I find that present Bridgewater practice is to use restraint and seclusion only after approval by a member of the professional staff, and that correction officers may reduce the degree of restraint when no longer necessary. Because the plaintiffs seek prospective relief only, and there is no threat of return to the prior practice, I look only to the present practice for the purposes of this memorandum. I find and rule that the present procedures for the use of restraint and seclusion are based on the exercise of professional judgment, as contemplated in Romeo, and thereby adequately protect the constitutional rights of the plaintiffs.

With respect to the seclusion and restraint imposed upon John Doe and Christopher Hansen, there is no credible evidence on the record that such seclusions or restraints as used were excessive or improper under the particular circumstances of each case. Both patients, particularly Mr. Doe, were dangerously assaultive. To the extent that restraints or seclusion were imposed to protect staff, other patients, or the plaintiffs themselves from a real threat of violence it is unquestionably within the power and responsibility of the Bridgewater staff to take such action. With respect to the vast majority of the restraints and seclusions on the record, I find that this was the case.

At other times, sanctions were initiated in response to patient behavior which was not assaultive, such as shouting, feces smearing, or other disruptive behavior. I find that the use of restraints and seclusion in response to this behavior is within the scope of professional judgment and was properly imposed to preserve the environment of the institution and for training purposes with respect to the individual restrained. Such therapeutic restraint or seclusion is constitutionally permissible where “necessary to ... provide needed training.” Id. at 324, 102 S.Ct. at 2462.

There is, therefore, no basis in the record for a finding that restraint or seclusion was excessive or arbitrarily imposed. It is well-documented that John Doe was and remains an extremely assaultive, dangerous individual who may require restraint and/or seclusion from time to time. The mere fact that he was restrained or secluded a great deal of the time, even more than is usual for a state hospital patient, fails to prove that any one restraint was constitutionally impermissible. By the same token, the same facts fail to prove that he was restrained arbitrarily for the convenience of the staff, not withstanding conclusory testimony to this effect by one of plaintiffs’ expert witnesses. In that such testimony is based purely upon a review of medical records, and was soundly rebutted by the testimony of correction officers and professional staff from Bridgewater, I conclude that it lacks convincing force. Again, I find and rule that restraint and seclusion were imposed upon the plaintiffs pursuant to the exercise of professional judgment and for constitutionally permissible reasons.

Finally, the plaintiffs complain that Bridgewater failed to provide adequate care, treatment and training to reduce plaintiffs need for restraint and seclusion, thereby impairing their constitutionally protected liberty interests. In that the standard for determining the adequacy of treatment and training is also whether professional judgment was exercised, many of the foregoing considerations apply. Additionally, I find and rule that Bridgewater’s treatment of John Doe has been adequate and even extraordinary. All standard modalities of treatment have been attempted. Consultations were obtained with nationally-renowned psychiatric experts, and new, creative methods of treatment were designed and executed. In this context, the plaintiff has succeeded only in proving that professional opinion differs as to which modalities are appropriate and which are not. This does not establish a constitutional deprivation.

Moreover, the defendants are under no obligation to institute treatment or training which is unlikely to improve a patient’s ability to function free from seclusion and restraint. Romeo at 324, 102 S.Ct. at 2462. As to John Doe, the evidence is overwhelming that he would not benefit from the treatment modalities proposed by the plaintiffs to the extent that his liberty interests would be significantly enhanced. As to Christopher Hansen, the evidence is that he successfully participated in an educational program, benefited from his Bridgewater treatment, and is now free from any institutional restraint. Thus, neither plaintiff has been deprived of any constitutionally protected interest.

In so ruling, I am cognizant ofthe fact that Bridgewater is both crowded and understaffed in some areas. This makes for less than ideal conditions which may impact negatively on some patients. In the case of John Doe, for example, the increased activity within the MU causes him to spend more time in his room. This, however, is a result of his most unfortunate and devastating mental illness as much as it is a shortcoming of the facility. The constitution does not require a state to provide an ideal environment for each person in its mental institution. Rather, it must provide an environment in which professional judgment may be exercised. Because Bridgewater’s facilities are not so lacking as to prevent this exercise of professional judgment, these shortcomings do not rise to the level of a constitutional deprivation.

Order accordingly.

      . Pursuant to M.G.L. c. 123 § 13, men held in a facility operated by the Department of Mental Health may be transferred to Bridgewater for up to five days in an emergency situation.


source: Caselaw Access Project

author: ZIEGLER, District Judge.

license: Public Domain

text:
    Dennis SULLIVAN, Michael Diskin, James Roseweir, Hershel Heilig, Wayne Jackson, John Clark and John King, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. The CITY OF PITTSBURGH, PENNSYLVANIA, Paul J. Imhoff, Superintendent of the Pittsburgh Bureau of Building Inspections, and Robert H. Lurcott, Director of the Pittsburgh Department of City Planning, Defendants.
    Civ. A. No. 85-1228.
    United States District Court, W.D. Pennsylvania.
    Sept. 23, 1985.

      Donald Driscoll, Pittsburgh, Pa., for plaintiffs.
    D.R. Pellegrini, Lee Markovitz, Pittsburgh, Pa., for defendants.
   ZIEGLER, District Judge.

This is a civil action for declaratory and injunctive relief filed by members of a class of former and recovering alcoholics against the City of Pittsburgh for alleged deprivation of their Fourteenth Amendment rights to equal protection and due process. Plaintiffs are residents of a well-known alcoholic treatment program in the City of Pittsburgh, Pennsylvania, known as The Alcohol Recovery Center (ARC). ARC has provided treatment and shelter to over 20,000 homeless alcoholics for over 19 years at various locations in the Northside section of the City of Pittsburgh. The City has never required a conditional use or occupancy permit.

On July 18, 1983, City Council voted to declare a moratorium on the establishment of group homes within the City following a dispute with the County of Allegheny over the location of such homes. Thereafter, Council voted to deny conditional use permits for continued operation of the ARC program at 1216 Middle Street and 800-820 East Ohio Street. On May 20, 1985, Council rejected the application of ARC to continue operation at a single facility due to community opposition. Plaintiffs filed the instant action contending that the amendment to the City of Pittsburgh Code (Zoning Code) is, in part, unconstitutional on its face, and violative of the Equal Protection Clause and Rehabilitation Act of 1973, as applied. We hold that the Zoning Code as drafted passes constitutional muster but

that the decision of the Council of the City of Pittsburgh to deny the application of ARC for a conditional use violated the constitutional rights of plaintiffs to equal protection of the laws because the decision was not rationally related to any legitimate governmental interest. Plaintiffs have sustained their burden of proof with respect to preliminary injunctive relief and the findings that follow are based on the weight of the credible evidence.

I. Findings of Fact

(1) The Alcohol Recovery Center (ARC) is a non-profit corporation which has provided residential treatment to over 20,000 recovering alcoholics in the Northside section of Pittsburgh since 1966.

(2) The Northside facilities have been located at 422-424 Tripoli Street, 1216 Middle Street and 800, 814, 816, 818 and 820 E. Ohio Street in Pittsburgh. ARC also operates facilities at 1831 Hulton Road, Verona, Pennsylvania and R.D. I, Avella, Pennsylvania.

(3) At present, ARC operates at 800 E. Ohio Street in the City, and the Verona and Avella facilities in the County, with 27, 60 and 19 residents respectively.

(4) The Zoning Code of the City provides that group homes are “conditional uses” which require: (1) an application which is processed by the Planning Department; (2) a public hearing before the Planning Commission which issues a recommendation and (3) approval by the Pittsburgh City Council.

(5) ARC submitted applications to the City of Pittsburgh for conditional use and/or occupancy permits for the North-side facilities on four occasions between 1966 and 1977.

(6) The Council of the City of Pittsburgh never acted upon these applications. The applications submitted in 1977 were processed by the Pittsburgh Planning Commission and recommended for approval.

(7) On March 23, 1977, the City of Pittsburgh through the Mayor, Richard S. Caliguiri, sent a letter to ARC commending it for the work that it was performing.

(8) On September 15, 1980, Title Nine of the Zoning Code was amended by ordinance to provide regulations for conditional use exceptions and to create three categories of group homes based on the number of residents.

(9) The ordinance provides that group homes shall include “group residence” facilities where a maximum of seven clients or nine persons overall, including staff, may reside; “group care” facilities, where a maximum of 17 clients or 19 persons overall may reside; and “institutional” facilities where the number of clients and staff exceeds 19.

(10) “Group homes” are defined as facilities which provide specialized health, social or rehabilitative services to the clients and 24 hour supervision.

(11) The group home ordinance of September 15, 1980 prohibited occupancy in a group residence facility by persons 19 years or older who are serving a sentence for a criminal offense.

(12) The group home ordinance was amended on November 7, 1983 to prohibit occupancy in a group care facility by per-, sons 19 years or older who are serving a sentence for a criminal offense, or under arrest and charged with a felony or any violent crime.

(13) There is no prohibition in the ordinance for occupancy in an institutional facility by persons serving a sentence for a criminal offense or under arrest and charged with a felony or any violent crime.

(14) A building permit, issued by the Bureau of Building Inspections of the City, is required before new construction or substantial repairs or improvements (including electrical work) can be performed on any building in Pittsburgh, including group homes.

(15) If repairs are undertaken without a building permit, the owner and workmen may be subject to criminal prosecution and the workmen may have their registrations revoked. '

(16) On several occasions since 1980, ARC sought building permits to undertake repairs and improvements. The permits were denied.

(17) Before a building permit can be issued, zoning approval must be obtained. A group home must secure a conditional use permit approved by the Council of defendant.

(18) In 1982, ARC applied for conditional use permits for a “group care” facility at 1216 Middle Street, an “institutional” facility at 800, 814, 816 and 818 East Ohio Street and a “group care” facility at 422 and 424 Tripoli Street. At the time, 142 individuals were residents at the Northside facilities of ARC; the applications sought approval for 99 residents.

(19) Frederick Just, the senior planner of the Planning Department and the person responsible for processing City group home applications, recommended approval for three of seven facilities, including 1216 Middle Street and 800 East Ohio Street, for a total occupancy of 65 residents. The Planning Department also recommended that the City of Pittsburgh allocate $75-100,000 in federally financed money from the Community Development Block Grant for necessary renovations.

(20) The senior planner concluded that such a recommendation would appease neighborhood residents, in which event, the Planning Commission would recommend the three facilities for approval.

(21) Greg Schlinkmann, the person responsible for laison with the community and employed by the Planning Department, recommended approval for the Tripoli Street buildings (at a reduced capacity) as well as the 1216 Middle Street and 800 E. Ohio Street facilities.

(22) On September, 14, 1982, at a public hearing conducted by the Planning Commission with respect to the applications, the East North Side Area Council, a community organization, expressed hostility towards ARC and the presence of recovering alcoholics but agreed to accept as many as two facilities of ARC in the neighborhood.

(23) On May 6, 1983, Charles Cain, the Director of ARC, in response to the order of the Hon. Maurice B. Cohill of this court limiting the population at the Allegheny County Jail and in response to the newly enacted mandatory state sentencing law for persons convicted of driving under the influence of alcohol, publicly stated that ARC would accept DUIs at its Northside facilities.

(24) The East North Side Area Council held a meeting on July 12, 1983, and demanded through Councilman William Robinson that the Council of the City of Pittsburgh close all facilities of ARC.

(25) On July 18, 1983, Council members Woods, Robinson, and Madoff introduced a resolution stating that Council intended to place a moratorium on the establishment of group homes in the City of Pittsburgh, whether funded by the County of Allegheny or State of Pennsylvania, until the County established a mutually acceptable procedure regarding the location of such homes. The resolution was adopted on that date.

(26) The Planning Department has the responsibility of processing money received by the City of Pittsburgh from the federal government for the Community Development Block Grant Program.

(27) On October 25, 1983, Ray Reaves, deputy director of the Planning Department, in an internal memo, recommended that only one ARC facility be approved, (1216 Middle Street), and that $200,000 in Community Development funds be provided to relocate the other residents to an Ohio Township site.

(28) Richard Bruce, Inspection Supervisor of the Bureau of Building Inspections, advised the Planning Commission that 1216 Middle Street satisfied all building codes and was safe.

(29) On October 25, 1983, the Planning Commission recommended approval of the facility at 1216 Middle Street but denied the Tripoli Street and East Ohio Street locations.

(30) On November 21, 1983, Council rejected all three applications. No hearing was held before that body, and no findings of fact or reasons were given for the rejection.

(31) Like ARC, “institutional facilities” operated by the Salvation Army, Goodwill Industries and the Abraxas Foundation also accepted DUIs. Each was requested by the City to seek new occupancy permits. Each facility, except ARC, chose to return DUIs to the Allegheny County Jail, thereby avoiding a confrontation with the City.

(32) Shortly thereafter, Paul Imhoff, the Director of the Bureau of Building Inspections, ordered ARC to stop accepting persons serving sentences for crimes under the Alternative Housing Program conducted by Allegheny County. ARC continued to accept DUIs.

(34) Frederick Just continued to work with Charles Cain to locate an alternate site for ARC.

(35) The Planning Department considered community opposition to be a determinative factor in site selection for ARC. Mr. Just suggested to Charles Cain that ARC locate in an area removed from residential property to reduce community opposition.

(36) The Planning Department concluded that community opposition had to be considered in selecting alternate sites due to Council’s stated opposition to group homes.

(37) ARC considered St. Margaret’s Hospital in the Lawrenceville section of Pittsburgh as an alternate site, and the Director sought Community Development funds for renovation of the site. The proposal was rejected by the Planning Department due to anticipated community opposition.

(38) All attempts to relocate the ARC facilities or. its residents were met with community hostility. No acceptable alternate site was located by Frederick Just or Elizabeth Pugh, the Director of the Pittsburgh Relocation Agency, a division of the Urban Redevelopment Authority of Pittsburgh (URA), or Operation Lifeboat, A City-County Task Force, or Charles Cain.

(39) No other facilities in the City of Pittsburgh or County of Allegheny provide the type of services rendered by ARC.

(40) The U.R.A. could not place ARC residents in group care facilities because of prejudice against alcoholics.

(41) The U.R.A. conducted a preliminary study of the feasibility and cost of renovating 800 E. Ohio Street and 1216 Middle Street because no alternate site was available for ARC residents.

(42) The Relocation Director of the U.R.A. determined that it would be more economical to renovate the existing facilities than to relocate the residents, even if an alternate site was available.

(43) Between the adoption of the group home amendment on September 15, 1980, and the enactment of the moratorium on July 18, 1983, City Council approved 16 of the 17 applications for group homes.

(44) Since the moratorium of July 18, 1983, one group home application was approved while nine were denied including Council’s rejection on May 20, 1985 of ARC’s application for 800 E. Ohio Street.

(45) Of the group home applications submitted since the moratorium, five were recommended by the Planning Commission. Each application which was subject to community opposition was rejected by Council. The only application approved by Council reduced the number of occupants from more than one hundred to twenty, and for that reason was not opposed by the community.

(46) In the fall of 1984, City and County officials and representatives of ARC met to attempt a resolution which would keep ARC at a Northside facility. An agreement was reached which was dependent, at the insistence of the City of Pittsburgh, on the agreement of local community organizations.

(47) The agreement provided for:

(a) a reduction in the number of North-side facilities operated by ARC to one at 800 E. Ohio Street;
(b) a maximum of 50 residents at that facility;
(c) renovations and site improvements to be funded by $100,000 of City and $100,000 of County C.D.B.G. funds, subject to formal approval of the Commissioners and Council;
(d) one-third of the board members of ARC were to be appointed by Council and the Commissioners of Allegheny County with the expectation that community residents would serve, and all ARC staff members would be removed from the Board;
(e) monitoring by the City and County of performance and regular meetings of the ARC Board with the neighborhood groups;
(f) the County would seek funding to hire a new administrative officer;
(g) no DUIs would be placed at the Northside facility, and
(h) the County would invest an additional $100,000 in C.D.B.G. funds to acquire or improve ARC facilities located in the County of Allegheny.

(48) The $100,000 in Community Development funds were available for at least a two-year period.

(49) The City and County representatives had been given informal authority by the City and County administrations to reach a resolution.

(50) ARC officials were unable to obtain the agreement of the East North Side Area Council. The senior planner determined, based in part on past experience with this group, that additional efforts would be futile.

(51) A second community organization, the East Allegheny Community Council, eventually agreed to the proposal; however, the group sought additional concessions including that other ARC properties be sold only with their concurrence.

(52) ARC’S Board was reconstituted in September, 1984 and by-laws were adopted which place all decision-making authority with the Board.

(53) The East Allegheny Community Council is funded by the City of Pittsburgh with Community Development Block Grant funds.

(54) If the request for funding of necessary renovations at 800 E. Ohio Street had been processed in the usual manner and without political opposition, approval would have been forthcoming.

(55) The time devoted to the ARC matter by the URA staff, as well as the time that would have been expended assuming the project had proceeded, was paid for by Community Development Block Grant funds.

(56) The City of Pittsburgh has identified the housing needs of handicapped persons to be a special need in its C.D.B.G. Housing Assistance Plan. This Plan is required as part of the application for Community Development Block Grant funds. The Housing Assistance Plan identifies 9,434 non-elderly handicapped persons in need of housing assistance in the City of Pittsburgh.

(57) Following a review of the testimony presented at a public hearing of the Planning Commission on February 5, 1985, the Planning Department recommended that ARC’s application be approved for 55 residents. The following conditions were also recommended: that an outside full-time director be hired by the ARC Board within 60 days of approval by Council; three neighborhood residents (one from each of the community organizations and one from the local business association) be appointed to the ARC Board within 30 days of Council’s approval; funds for bringing the facility to Code be secured within 90 days of Council’s approval; and that a site plan to include a privacy fence, landscaping and recreation area be submitted to the Department of Planning within 30 days of approval.

(58) The Zoning Code group home amendments require that:

(1) an advisory board in part made up of community residents to deal with community concerns and submit reports which are to be forwarded to the Bureau of Building Inspections;
(2) a semi-annual certification procedure conducted by the B.B.I.; and
(3) failure to comply with conditions set by Council or the procedures required by the Code would be grounds for revocation of an occupancy permit by the Bureau of Building Inspections.

(59) All of the conditions and requirements for zoning approval were met in the 800 East Ohio Street application.

(60) The property at 800 E. Ohio Street is located in a C-3 commercial district. Under the open space requirements normally applicable in C-3 districts, (Ordinance at § 955.05(7), a building may not cover more than 60 percent of the total lot. However, the site plan process is applicable to institutional facilities such as ARC in C-3 districts. (Ordinance at §§ 955.06 and 955.04). The 800 E. Ohio Street building covered only 33 percent of the lot (5,352 square feet of building on 16,217 square feet of total ground). Under either procedure, ample open space was available.

(61) The Zoning Ordinance also addresses “impaction” or spacing concerns. For example, group care facilities cannot be located within one-quarter mile and group residence facilities cannot be located within one-half mile of other such facilities or an institutional facility or an outpatient drug and alcohol clinic. ARC’s application met such spacing requirements.

(62) No evidence was submitted at the public hearings of February 5 or September 14, 1982 conducted by the Planning Commission that nearby property values would be diminished if ARC occupied 1216 Middle Street or 800 E. Ohio Street.

(63) Based on the lack of proof and experience with other established group homes, Frederick Just concluded that property values would not depreciate.

(64) The Planning Department concluded that, in light of the reduction in buildings and clients, the performance conditions recommended, and the semi-annual recertifications, the surrounding area would not be negatively affected by the proposal.

(65) One factor considered in recommending approval of 800 E. Ohio Street was the negative impact on the surrounding area if ARC were to close and the residents returned to the streets.

(66) But for the provision of supervision and treatment, the ARC facility at 800 E. Ohio would be eligible for zoning approval as a lodging house without approval by Council.

(67) The Neighborhood Commercial Improvement Program is a C.D.B.G. funded program for building improvements within targeted areas. The East Ohio Street commercial district is an eligible target area up to but not including 800 E. Ohio Street.

(68) Certain administrative activities of the Department of Planning, including those activities of the senior and community planner which involve non-profit organizations serving low income persons such as ARC, are paid by C.D.B.G. funds.

(69) ARC provided a valuable service to the Court of Common Pleas of Allegheny County, Pennsylvania by offering treatment without total confinement to those with a drinking problem who are convicted of driving while under the influence of alcohol.

(70) Alcoholism is defined by the medical and psychiatric professions as a disease which is both disabling and a handicap.

(71) Alcoholics who are drinking alcoholic beverages are subject to severe physical and psychological deterioration. An alcoholic is never fully cured. Even after years of sobriety, a return to drinking results in a resumption of the destruction previously experienced.

(72) The medical profession has concluded that in many instances there may be a propensity towards alcoholism which is inherited or otherwise inately acquired.

(73) Societal prejudice has existed historically with respect to alcoholics, including a resistance among many people to accept recovering alcoholics within the community-

(74) The evidence preponderates that a recovering alcoholic is as likely to be a responsible citizen and good neighbor as a nonalcoholic person.

(75) Group residential treatment plays an essential role in the recovery of a substantial number of alcoholics.

(76) The structured setting of a residential treatment program, and the mutual support provided by the residents is an important aspect of treatment.

(77) The residents of ARC are forbidden to use alcohol. Unless inconsistent with other prescribed medication, residents must take Antabuse, which causes discomfort if alcohol is consumed within seven days. Residents must participate in group and individual therapy sessions. They must earn gradual and decreasing restrictions on their outside activities. There is 24-hour supervision including hourly inspections of the building.

(78) The location of a group residence in a community is important to the re-entry of an alcoholic into the community, to the availability of jobs and community services, and to a sense of self-worth.

(79) ARC has been an important resource to alcoholics who have been discharged from alcohol treatment programs administered by various hospitals in this community.

(80) Except for St. Johns and St. Francis Hospitals, hospitals in the Pittsburgh area are not reimbursed for providing extended treatment to alcoholics; alcoholics are often discharged without extended treatment for their alcoholism.

(81) In January, 1985, ARC was compelled to agree to decline new residents until conditional use approval and an occupancy permit was approved. Since then, ARC has been forced to decline to admit approximately seven alcoholics per month without treatment and others who were referred by various hospitals.

(82) If ARC is required to close, it is likely that the present residents will return to drinking with the danger of physical and psychological deterioration and perhaps death.

(83) If ARC closes, the population of homeless street people in the City of Pittsburgh will likely increase by 10 to 20 percent. A substantial number of these people are alcoholics.

(84) Street people place heavy demands on municipal services such as fire protection, police and emergency medical care.

(85) A substantial number of vacant buildings are occupied by street people from time to time, thereby increasing the risk of fire and danger to firemen, neighboring community residents and the street people themselves.

(86) There is a need for additional group residential treatment facilities for recovering alcoholics in the neighborhoods of the City of Pittsburgh and on the Northside in particular.

(87) The building at 800 East Ohio Street does not meet the Pittsburgh Building and Fire Codes. However, this is not relevant to conditional use approval. It is relevant to the issuance of an occupancy permit after approval of a conditional use.

(88) Approximately $60,000 in renovations are required to bring the building to the standards of the Building and Fire Codes.

(89) Allegheny County has committed $100,000 for building and site improvements at 800 East Ohio Street upon condition that the City of Pittsburgh grant conditional use approval.

(90) City Council has denied the ARC applications and other group home applications since July, 1983, because Council perceives an inbalance between group homes in the City and the County and that more group homes should be established without the City.

(91) The evidence established that there is no inbalance between the number of group homes in the City of Pittsburgh and the number of group homes in the County of Allegheny, particularly when the number of persons in need of such homes from the City is considered.

(92) Council has stated that group homes will no longer be established in the City until the County of Allegheny enters into a mutually acceptable agreement to locate more group homes in the County.

(93) Council has determined and communicated to the Planning Department, group home providers, and residents that neighborhood opposition to group homes will be cause for denial.

(94) The Board of the Catholic Institute of Pittsburgh, which owns the property located at 800 East Ohio Street, has agreed to donate the property to ARC so long as the premises continue to be used for charitable purposes.

(95) The treatment received at ARC permits a number of present residents to receive public assistance. If forced to move from ARC, public assistance may be terminated.

(96) The evidence established that the decision of the Commonwealth of Pennsylvania to revoke the license of ARC at 800 East Ohio Street was based on the conditions which existed subsequent to the unconstitutional decision of the City of Pittsburgh to deny building permits and conditional use approval to ARC.

(97) If the City of Pittsburgh had granted building permits to enable ARC to undertake repairs and renovations at 800 East Ohio Street, and granted the conditional use application at the facility, necessary repairs would have been undertaken to meet all requirements of the Department of Health of the Commonwealth of Pennsylvania.

(98) The decision of the Council of the City of Pittsburgh to deny the applications of ARC for conditional use approval and permits at 1216 Middle Street and 800 East Ohio Street violated the constitutional rights of plaintiffs to equal protection of the laws guaranteed by the Fourteenth Amendment.

(99) The equitable ejectment action filed by the City of Pittsburgh against Charles Cain and ARC House, Inc., at 6D-84-6120 in the Court of Common Pleas of Allegheny County, Pennsylvania constitutes neither a bar to the assertion of plaintiffs’ federal rights nor a bar to the motion of ARC to intervene.

(100) Plaintiffs federal claims are not barred by the state court action because (a) they were not parties to the action; (b) they had no duty to intervene; (c) there was no final state court judgment on the merits; (d) the instant cause of action arose subsequent to the state court litigation; (e) the doctrine of claim and issue preclusion is not applicable; and (f) 28 U.S.C. § 1738 is inapposite.

(101) The federal claims of ARC are not barred by the state court action because (a) the consent decree of January 14, 1985 was not a final state court order; (b) the federal claims of ARC were not, and could not have been raised within the scope of the state court proceeding instituted by the City of Pittsburgh; (c) ARC’s federal claims arose subsequent to the state court litigation; (d) the doctrine of claim and issue preclusion is not applicable; (e) 28 U.S.C. § 1738 is inapposite; and (f) abstention is not warranted.

(102) The motion of ARC to intervene must be granted and, for the reasons rehearsed, we conclude that the decision of the Council of the City of Pittsburgh to deny the applications of ARC for conditional use approval and permits at 1216 Middle Street and 800 East Ohio Street violated the constitutional rights of ARC to equal protection of the laws guaranteed by the Fourteenth Amendment.

II. Conclusions of Law

(1) This court has jurisdiction by reason of 28 U.S.C. § 1343(3) and (4) and 28 U.S.C. § 1331.

(2) Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-2202.

(3) Abstention is not warranted, under the circumstances, because plaintiffs have a right to assert federal claims in a federal forum. Moreover, plaintiffs are not parties to any ongoing state proceeding in which their constitutional claims can be raised or complete relief obtained. New Jersey-Philadelphia Presbytery v. New Jersey State Board, 654 F.2d 868 (3d Cir. 1981).

(4) Plaintiffs’ claims are not barred by res judicata under federal or state law because: (1) they are not parties to any previous state court actions involving the matters here asserted, Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); (2) there is no final judgment on the merits with respect to any claim now asserted which is entitled to full faith and credit under 28 U.S.C. § 1738, Wade v. City of Pittsburgh, 765 F.2d 405 (3d Cir.1985), New Jersey-Philadelphia Presbytery v. New Jersey State Board, supra; (3) the January 1985 consent order in the Court of Common Pleas of Allegheny County, Pennsylvania at No. 6D 84-6120 is not binding on plaintiffs here because they were non-parties, Sabatine v. Commonwealth of Pennsylvania, 497 Pa. 453, 442 A.2d 210 (1982); (4) the state court order did not encompass plaintiffs’ causes of action, In re Jones & Laughlin Steel Corp., 328 Pa. Super. 442, 477 A.2d 527 (1984); and (5) previous state court orders and litigation between ARC and the City cannot bar plaintiffs’ claims based on Council’s action of May, 1985, because the instant cause of action arose thereafter. Harris v. Pernsley, 755 F.2d 338 (3d Cir.1985).

(5) Plaintiffs were not required to intervene in any civil actions filed by or against ARC House in state court. New Jersey-Philadelphia Presbytery v. New Jersey State Board, supra; Bannard v. New York State National Gas Corp., 404 Pa. 269, 172 A.2d 306 (1961).

(6) The City of Pittsburgh, by the July 1983 declaration of Council that further group homes funded by the County of Allegheny or Commonwealth of Pennsylvania would not be permitted in the City of Pittsburgh, violated the right to equal protection of the instant class of handicapped persons who need to reside and receive rehabilitative services in a group facility. City of Cleburne, Texas v. Cleburne Living Center, — U.S.-, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

The declared moratorium of July 18, 1983 chilled the exercise of constitutional rights of the instant class of handicapped persons in need of residential and rehabilitative services in a group facility and those organizations, such as ARC, which are organized for the purpose of meeting the needs of such handicapped persons.

(8) The action of the City of Pittsburgh in rejecting the applications of ARC for conditional use of the facilities at 1216 Middle Street and 800 E. Ohio Street was not rationally related to a legitimate governmental purpose. City of Cleburne, supra — U.S. at -, 105 S.Ct. at 3258; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

(9) The City of Pittsburgh had no legitimate interest in excluding the instant class of handicapped persons in need of residential and rehabilitative services at the facilities in dispute due to opposition based on unfounded fear, speculation and prejudice. City of Cleburne, Texas v. Cleburne Living Center, supra; J.W. v. City of Tacoma, Washington, 720 F.2d 1126 (9th Cir. 1983).

(10) The City of Pittsburgh had no legitimate interest in excluding the instant class of handicapped persons in need of residential and rehabilitative services at the facilities in dispute due to the perceived failure of a separate legal entity, i.e., the County of Allegheny, to locate additional group homes without the City.

(11) To the extent that the number of group homes in the City of Pittsburgh is a legitimate concern, defendant legislated this concern by prohibiting the location of a group residence facility within one half mile of another group residence, a group care facility, an institutional facility or an outpatient drug and alcohol clinic, and by prohibiting the location of a group care facility within one quarter mile of such facilities or clinics. ARC’s applications are not inconsistent with this legitimate requirement.

(12) The City of Pittsburgh had no legitimate interest in denying the application for 800 E. Ohio Street because it might impede the normal and orderly development of surrounding properties and impair neighboring property values absent some demonstration that such an occurrence would be caused by something more than unfounded fears, speculation or prejudice. J.W. v. City of Tacoma, supra.

(13) No evidence was presented at the hearing before Council on February 5, 1985 or before this court that the presence of ARC would impede the orderly development of neighboring properties or reduce property values, although the resolution of Council was grounded on such reasoning. Indeed, the staff of the Planning Department opined that presence of ARC would not impede development or reduce property values, and the evidence before this court is to the same effect.

(14) There was no evidence presented at the hearing before the Planning Commission or before this court to substantiate any limitation on lot area or side yard dimension causing a deficiency in recreation area and open space for adequate light, air and noise dispersion. On the contrary, the testimony at both hearings established that all zoning requirements were met and that ample open space was available.

(15) The reasons cited for the resolution of Council to deny the application of ARC are pretextual.

(16) None of the reasons offered by defendant for denying ARC’s application— building code violations and license review — are relevant to approval of a conditional use permit; these concerns are relevant only to an occupancy permit.

(17) Council’s discretion to deny a conditional use is sharply limited under state law. A conditional use is a permitted use, unless the objectors prove that approval is likely to substantially affect the health and safety of the community in an adverse manner. Robinson Township v. Westinghouse Broadcasting Co., 63 Pa.Cmwlth. 510, 440 A.2d 642 (1981). No such evidence was presented to council.

(18) Statutory classifications which affect the mentally retarded must be rationally related to a legitimate governmental purpose. City of Cleburne, Texas v. Cleburne Living Center, — U.S. at-, 105 S.Ct. at 3258 (1985). Recovering alcoholics are entitled at least to the same standard of judicial review.

(19) Recovering alcoholics have been: (1) victims of historic prejudice; (2) saddled with a disability; (3) members of an immutable class; and (4) relatively politically powerless. Medora v. Colautti, 602 F.2d 1149 (3d Cir.1979).

(20) Access to treatment in a group residential facility is essential to effective treatment of recovering alcoholics and their reintegration into society.

(21) Although the Pittsburgh Zoning Ordinance does not refer specifically to alcoholics or recovering alcoholics, the decision of Council to single out the individuals living at the group residential facilities of ARC, at these particular locations, and receiving health, social or rehabilitative services, is an unconstitutional application of the Ordinance because it effectively discriminates against plaintiffs; burdens their access to appropriate treatment; and under the circumstances, is unrelated to any rational governmental purpose.

(22) It is not a valid justification for a discriminatory application of an ordinance that other groups of handicapped persons in need of residential and rehabilitative services in a group facility also are subject to discriminatory treatment.

(23) The application of the Zoning Ordinance with regard to ARC’s applications violated plaintiff’s right to equal protection of the laws. City of Cleburne, Texas, supra; J.W. v. City of Tacoma, supra.

(24) In failing to demonstrate or even articulate any rational relationship to an important governmental purpose or interest in denying the applications at 1216 Middle Street and 800 E. Ohio Street, the City acted in an arbitrary manner in violation of plaintiff’s rights to substantive due process, J.W. v. City of Tacoma, supra, in addition to the right to be treated equally by the law.

(25) The City of Pittsburgh is a recipient of federal financial assistance in the form of Community Development Block Grant funds.

(26) These funds assist various forms of community development, nearly all of which require zoning approval before they can proceed.

(27) In withholding zoning approval to plaintiffs, a class of handicapped persons who need to reside and receive rehabilitative services in a group facility, the City of Pittsburgh discriminated against the class of otherwise qualified persons in violation of the Rehabilitation Act of 1973, 29 U.S.S. § 794. Plaintiffs have established that they are (a) handicapped individuals; (b) otherwise qualified for benefits from which they have been excluded; (c) solely because of their handicap; and (d) the program is subject to § 504. Strathie v. Department Trans., 716 F.2d 227 (3d Cir.1983). Defendant failed to establish that its actions were either substantially justified or reasonable. Id. at 230.

(28) But for community opposition, the City of Pittsburgh directly or through the Urban Redevelopment Authority would have spent $100,000 of Community Development Block Grant funds to renovate the ARC facility at 800 E. Ohio Street.

(29) The City of Pittsburgh failed to reasonably accommodate the handicap of those who require group residence and rehabilitative services by denying the application for zoning approval of the ARC facilities at 800 E. Ohio Street and 1216 Middle Street when all enumerated and enforceable conditions suggested, in part, by defendant’s officials were satisfied. Nelson v. Thornburgh, 567 F.Supp. 369 (E.D.Pa. 1983), affd. 732 F.2d 146 (3d Cir.1984).

(30) Plaintiffs’ contention that the Zoning Ordinance is violative of the Fourteenth Amendment on its face is without merit.

(31) The motion of ARC to intervene must be granted because the claim of ARC meets the test Fed.R.Civ.P. 24(b) and the federal claims of intervenor are not barred under federal or state law for the following reasons: (a) the consent decree of January 14, 1985 in the Court of Common Pleas of Allegheny County, Pennsylvania was not a final state court order adjudicating the constitutional claims of ARC; (b) the federal claims of ARC were not, and could not have been raised within the scope of a state court eviction proceeding, as the able state court judge noted; (c) ARC’s federal claims arose from the acts of Council, i.e., administrative rulings, and an unappealed administrative ruling is not entitled to full faith and credit under 28 U.S.C. § 1738, Kremer v. Chemical Const. Corp., 456 U.S. 461, 470, 102 S.Ct. 1883, 1891, 72 L.Ed.2d 262 (1982); (d) the doctrine of claim or issue preclusion is inapplicable under state or federal law; and (e) abstention is not warranted. Wade v. City of Pittsburgh, 765 F.2d 405 (3d Cir.1985);

(32) The decision of the Council of the City of Pittsburgh to deny the applications of ARC for conditional use approval and permits at 1216 Middle Street and 800 E. Ohio Street violated the constitutional right of ARC to equal protection of the laws and due process guaranteed by the Fourteenth Amendment for the reasons rehearsed.

(33) The request of plaintiffs for a judgment declaring that the zoning ordinance of September 15, 1980 is unconstitutional on its face must be denied.

(34) Plaintiff and intervenor are entitled to preliminary injunctive relief because plaintiffs have established by a preponderance of the evidence that: (1) they are likely to succeed on the merits; (2) they are subject to irreparable harm pendente lite; (3) defendants will suffer no harm from the grant of an injunction; and (4) the public interest requires that plaintiffs be accorded relief. Constructors Association of Western Pennsylvania v. Kreps, 573 F. 2d 811 (3d Cir.1978).

III. Injunctive Relief

(35) Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant to ARC a conditional use permit for a group care facility at 1216 Middle Street, and a conditional use permit for an institutional facility at 800 E. Ohio Street.

(36) Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant building permits to ARC to undertake repairs and renovations at 1216 Middle Street and 800 E. Ohio Street to bring those facilities into compliance with Electrical, Fire and other relevant Codes, if any.

(37) Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant occupancy permits to ARC at the two facilities without undue delay.

(38) Plaintiffs and intervenors are entitled to a preliminary injunction requiring the County of Allegheny and the City of Pittsburgh to appropriate and deposit in an appropriate account, within 90 days, the sum of $50,000 each, or a total sum of $100,000 of Community Development Block Grant funds to enable ARC to undertake the necessary repairs and renovations at the two facilities to bring those structures into compliance with all applicable codes, without undue delay.

(39) The sum of $100,000 shall be placed in an appropriate account at Mellon Bank, N.A., in the name of Donald Driscoll, Esquire, counsel for Neighborhood Legal Services Association, as trustee for ARC, to finance the necessary repairs, or renovations. Counsel and the NLS shall at all times be jointly and severally responsible and accountable for the aforesaid funds, and shall indemnify the payors in the event of any loss.

(40) No payment shall be made for necessary repairs unless approved by Donald Driscoll, Esquire, and counsel shall advise the court of all expenditures in a monthly written progress report.

(41) After initial code repairs have been completed, the County of Allegheny and the City of Pittsburgh shall appropriate additional Community Development Block Grant funds to finance renovations and site improvements at 800 E. Ohio Street to permit ARC to provide services to no more than 50 residents at the facility.

(42) The aforesaid site plan shall include, with respect to 800 E. Ohio Street, a privacy fence, landscaping, exterior renovations on E. Ohio Street, and a recreation area.

(43) Counsel for plaintiffs shall submit to the court within 10 days an appropriate preliminary injunctive decree which incorporates the aforesaid relief, as well as additional relief which may be appropriate.