wallace response tom td

UNITED STATES DISTICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

STEPHEN WALLACE AS §

GUARDIAN FOR JUSTIN §

WALLACE §

Plaintiffs §

V. §

§

DR. KYLE JANEK §

COMMISSIONER OF TEXAS §

HEALTHANDHUMAN §

SERVICES COMMISSION, CHRIS §

TRAYLOR, DEPUTY §

COMMISSIONER, SCOTT §

SCHALCLIN, ASSISTANT §


DEPARTMENT OF AGING AND §

DISABILITY SERVICES §

Defendants

FILED

214OCT27 P1112:30

'TT COURT STLR4 SO1C1 OF TEXAS

C))

Civil Action No. A14CV0830 LY

PLAINTIFF'S RESPONSE TO MOTION TO DISMISS

Plaintiff respond's to the Defendant Motion to Dismiss pursuant to Federal

Rules of Civil Procedure 12(b)(1) and (6) by submitting the following:

Case 1:14-cv-00830-LY Document 8 Filed 10/27/14 of 18

OVERVIEW

Plaintiff wishes to make clear that this action was not filed to establish a

claim for damages, question the State's right to transfer residents for compelling

cause, or to establish a heretofore unrecognized property right. Plaintiff filed this

complaint to enjoin the Defendants, acting under the color of State authority, but

not in compliance with state policy or federal constitutional law, from pursuing

wrongful acts which would result in irreparable harm to the Plaintiff's son and

ward. Plaintiff responds that the Defendants' requests for dismissal are based on

a misapplication of the law and the facts. Plaintiff is a neophyte to the federal

litigation process and responds with little knowledge or experience, but with

ample and sound arguments in fact and law. The response will be found in

sections applicable to each argument put forth by the Defendants.

11TH AMENDMENT IMMUNITY

Plaintiff concedes that the 11th Amendment to the Constitution of the United

States acts as a powerful bar to private action against the sovereign states.

However, this Complaint was filed under provisions of 42 USC 1983 and the 14th

Amendment with specificity. The State of Texas was not listed as a defendant


because the state is not the bad actor in this case. This action was filed because

the named Defendants were acting in a manner contrary to state and federal law,

thereby acting outside the protection granted the states. Ex Parte Young (209 US

183).

The State of Texas has, since its settlement in Lelsz v. Kavanaugh (807 F2d

1243), transferred residents via a continuum of services evaluation. The

evaluation is centered on finding the appropriate setting for each person

residentially served by the state. Such evaluations are held for the residents of

the state supported living centers each year, and are founded on the input of the

interdisciplinary team working with that resident, and his or her guardian. In this

instant case, the annual placement analysis was completed for the Plaintiff's son

in April of 2014. That analysis determined that the appropriate placement for the

resident in question was the current placement at Building 784, on the campus of

the Austin State Supported Living Center. Less than 60 days later, Plaintiff was

contacted by Defendant Schalclin (who was not yet served in this matter because

his office at first denied his existence, and then stated that no one was available

to accept service) by mail and informed that the many residents of the Austin

State Supported Living Center would be moved within the next few months due

to the issue involving the Department of Justice and other regulatory authorities.


The letter was followed by a communication from the living center's new director,

informing Plaintiff that his son's building would be closed and he would be

relocated to either the community or another state supported living center. In

accordance with this communication, a new placement evaluation was done and

it was decided without the consent or agreement of the local interdisciplinary

team or the guardians, that Plaintiff's son would be moved to another living

center some 90 miles away. The reason given for relocation was that the current

placement was no longer appropriate because the resident's building would be

closed. In subsequent conversations and meetings between the various

Defendant's and the Plaintiff, the Defendant's stated several moveable and

variable reasons for the building closure, but none of those reasons were based

on the individual needs of the resident. These Defendants knew that state policy

existed which would determine the orderly location and relocation of disabled

individuals within its care, but chose to forego such policy and procedure to

arbitrarily and capriciously select some 70 residents of the Austin State Supported

Living Center for eviction and removal without adhering to existing state policy.

In doing so, the Defendants violated Plaintiff's son's constitutional rights to due

process and fair treatment under Federal and Constitution law and principals.


Defendants argue in their motion to dismiss, that Plaintiff's request for

injunctive relief should be barred by 11th Amendment immunity, but the Plaintiff

believes that if proper discovery is allowed in this case, it can be shown that the

Defendants ignored state and federal laws and protections to deny Plaintiff's son

his rights to protection to life, liberty and property. Defendant's counsel has

chosen to focus on property as the only potential constitutionally protected right

that the Plaintiff's son could claim, and then seeks to argue for dismissal because

Plaintiff's son has no property right to continue his current residence. While

there is some potential error in Defendant's position (the property upon which

the Plaintiff's son currently lives was dedicated as a safe haven for the mentally

disabled in 1917), the Plaintiff is not prepared to argue the property right at this

juncture. Plaintiff does argue that his son may have other human and

constitutionally protected rights. Plaintiff's son has not lost his rights to life,

liberty, self-determination, or dignity merely because his disability prevents him

from functioning independently.

The Plaintiff's son functions on the severe end of the Autism Spectrum, and has a

history of self-injurious and life threatening behavior. The sole reason he was

placed residentially was due to the warranted view of his guardians that he would

likely soon die if he were not living in a safe and secure environment offered by


residential placement. During his first two years at the Austin State School,

Plaintiff's son remained heavily sedated and physically restrained for much of that

time. Even with a trained staff, the threat of self-injury or injury to others was so

great, that he was assigned one on one coverage 24 hours per day for much of

that period. After that two year adjustment, Plaintiff's son began to be able to

move about more freely, and with less restraint. Currently, he lives in relative

peace and enjoyment, considering the severe nature of his disorder. Now the

Defendants come forward with a plan to evict Plaintiff's son from this secure and

safe environment, thereby threatening his right to life itself. Additionally, the

Defendants seek to alter Plaintiff's daily life and his right to associate with those

he knows and trust without any compelling reason which relates directly to him.

As stated earlier, the decision to evict the Plaintiff's son was entirely arbitrary

and capricious in that it did not select him for movement for any reason related to

him or his needs, and in fact no compelling or logical reason has been offered.

The Defendants have maintained in their motion before the Court that this

eviction was based on a theory that 25% of the residents should be removed from

the living center so that the other 75% may receive better services. The

Defendants have established no nexus between the eviction of this particular 25%

and better management for the other 75%. The other residents of Plaintiff's son's


building have no commonality which can be easily seen without further discovery.

On his building, the other 11 residents vary greatly in medical condition and

functioning level, from high functioning residents with Downs syndrome, to a

profoundly retarded and blind resident. The Defendants decided to move

Plaintiff's son and the other residents because, as proper discovery will show,

they were geographically located in a particular part of the campus, not because

they shared some other commonality. (This geographic area lay within 75 feet of

a newly approved and rezoned residential project which creates a highly desirable

market value for the current setting of the building in question). That arbitrary

decision without compelling cause or distinction renders the Defendants' actions

as outside the scope of their responsibilities and in contradiction to the proper

actions prescribed by the Defendant's duties to the State

As a neophyte, Plaintiff takes the uncommon approach of pointing out a

defense upon which the Defendant's counsel may eventually rely. In recent

years, the United States Supreme Court has expanded the immunity principles

discussed so far, by allowing an affirmative defense of qualified immunity to

extend to many state actors. In conceding this trend, Plaintiff wants to remind

the Court that the qualified immunity standards as developed and expanded in

Stanton v. Sims (2014), are subjective standards which would require Defendants


to show that they made qualified and competent decisions when acting in

violation of the rights of the aggrieved parties. Such a showing would require

more discovery and factual review not possible if a dismissal is granted. If this

complaint is allowed to continue, Plaintiff will seek to show that Defendants acted

in manner which was beyond the scope of their authority and in deference to the

rights of Plaintiff's son; and further, that Defendants knew such actions were

improper.

As a last statement on the immunity question, Plaintiff points to a dissent

found at (482 F2d 369-70) Justice Wisdom saw no reason why the 11th

Amendment should hold dominance over the 14th Amendment. Plaintiff asserts

that the 11th Amendment was never constructed or intended to allow the various

states and states actors to randomly and arbitrarily violate the 14th Amendment

rights of those least able to protect themselves.

Rule 12(b)(1)

Defendants contend that no federal question has been raised in this

complaint. Plaintiff argues that federal questions have been addressed and

presented. The Defendants seek to evict and remove the Plaintiff's son from his

current home, and his safe secure and preferred environment without allowing

any pertinent or applicable due process procedure. The Defendants site an


offered hearing. However, that Hearing process was proceeded by a statement

from department officials and the Hearing Officer assigned, that the sought after

relief, which was continued placement at the Plaintiff's son current home, was

not to be an option. Therefore, denial of the Plaintiff's appeal was a foregone

conclusion, and not even a pretense of due process was offered.

The Defendants now argue in their motion to dismiss due to the absence of

a federal subject matter jurisdiction, that no legitimate question of federal law or

constitutional issue has been stated by the Plaintiff. In fact, Section 1983, is a

federal statute which specifically grants jurisdiction to this Court to prevent those

States and state actors from violating the constitutional rights of citizens. Therein

lay a federal complaint which can be and often is filed in conjunction with a

constitutional question based on the violation of the 14th amendment rights to

equal protection and due process. In this instant case, Plaintiff's son is a member

of a protected class. He is potentially being denied his right to continue his life in

a safe and secure environment without due process specifically because he is a

member of that protected class. But for his dependence on the state caused by

his severe disability, he would not be subjected to the current process of an

arbitrary and capricious eviction initiated without compelling cause or reason.

Defendants maintain that he has no right to choose a certain facility, but that is


not the core question here. The question raised by the Plaintiff is whether or not

he can be selected to be removed quickly, without compelling reason, and

without any semblance of due process to a new location, in light of the fact that

such a move will likely cause him irreparable harm. The Defendant's assert

repeatedly that comparable services exist for all of those evicted, including

Plaintiff's son, without delving even superficially into the question of individual

needs. The "one size fits all" assumptions of the Defendants exemplify the type

of bigotry necessary to order a mass eviction based on the assumption that all

individuals with severe or profound cognitive dysfunction look alike.

RULE 12(b)(6)

Defendants argue that this complaint should be dismissed because the Plaintiff

has failed to state a cause of action upon which relief may be granted. The

request for relief is simple. The Plaintiff asks that the Court enjoin the Defendants

from taking action which will cause irreparable harm to his son. Plaintiff's son has

inflicted self-injury in the past and has lost the liberty of free movement in the

past due to any changes in his setting or his life. Plaintiff does not state

frivolously that he fears that his son will die or be even more seriously impaired

due to this eviction without compelling cause. The actions of the Defendants, in


this case were taken in deference to state policy and federal law, and were done

so to further the interest of those other than the Plaintiff's son.

STATE STATUTE

Defendant's argue that Plaintiff has erred in including a state statute

provision which prevents those in the roles of the current Defendants from

alienating state property used in service to the mentally retarded without

legislative approval. Defendants maintain that the buildings marked for closure,

which coincidentally are all located in a particular geographic region of the living

center campus, are being closed for clear and legitimate administrative reasons,

not due to any decision to sell the land upon which the buildings are housed.

Plaintiff disagrees for the following reasons:

In 2007, the Land Commissioner of Texas, Jerry Patterson, sold two acres of

state land located approximately 75 feet from the building in which Plaintiff's son

currently resides, at the behest of the state agency in charge of the living center.

Shortly afterward, the developer who purchased the land sought approval from

the Austin City Council to rezone the area for multi-family housing. Land

Commissioner Patterson sent a letter to the Austin City Council in 2007, urging

that separate political body to rezone the requested area as sought by the


developer, so that the land upon which the state supported living center was

housed would bring its maximum market value when it was sold. For seven years,

the Austin city council declined the rezoning request sought by both the

developer and the Land commissioner. Then, in April of 2014, that council

reversed itself and approved a rezoning for the land on the East side of

Exposition, which forms the Western boundary of the living center. In June of

2014, residents and guardians of those living in the seven buildings immediately

adjacent to the newly rezoned building site, were informed that those buildings

would be closed and the residents would be forced to move. Plaintiff believes

that proper discovery developed in this continued case will show that the state

and the named defendants, in fact, have intended to sell or lease the property

upon which the Plaintiff's son resides, for several years, and have attempted to

further that cause without legislative input. It should be noted that the same land

commissioner earlier mentioned, released a report in 2013, recommending the

sale of the Austin State Supported Living Center in its entirety. In that report, he

concluded that sale should be undertaken because the campus was

"underutilized" and was so marketable that it would behoove the state to sell.

The defendants now seek to reduce the population even more, thereby

underutilizing the campus to an even greater extent.


Plaintiff finally asserts that evidence exist within the so far unobtainable

files and records of the Defendants and their respective agencies to show that the

Defendants have acted against the interest of Plaintiff's son, and all of the current

residents slated for eviction, and have done so in violation of state statute, and

federal and constitutional law. Dismissal at this stage would prevent that

evidence from being produced and reviewed. Therefore, Plaintiff respectfully

requests that the Defendants' motions to dismiss be denied.

Stephen Wallace, for Justin Wallace

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AUSTIN DIVISION



WALLACE §

Plaintiffs §

V. §

§

DR. KYLE JANEK §


HEALTHANDHUMAN §


TRAYLOR, DEPUTY §






Defendants


ORDER DENYING DEFENDANTS' MOTION TO DISMISS

Before this Court is Plaintiff Stephen Wallace's request to deny Defendants' Motion to


Dismiss pursuant to Rule 12(b)(1). This Court finds that the motion before this Court to Dismiss

has no merit and should be denied.

IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss is DENIED.

HON. LEE YEAKEL

Western District of Texas




AUSTIN DIVISION



WALLACE §

Plaintiffs §

V. §

§

DR. KYLE JANEK §


HEALTHANDHUMAN §


TRAYLOR, DEPUTY §






Defendants


ORDER DENYING DEFENDANTS' MOTION TO DISMISS

Before this Court is Plaintiff Stephen Wallace's request to deny Defendants' Motion to


Dismiss pursuant to Rule 12(b)(6). This Court finds that the motion before this Court to Dismiss

has no merit and should be denied.

IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss is DENIED.

HON. LEE YEAKEL

Western District of Texas


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