The opinion of the court was delivered by: Decker, District Judge.
This is an action under 42 U.S.C. § 1983, § 1985, § 1986 and §
1988, for compensatory and punitive damages arising from
treatment plaintiff received, or failed to receive, while she was
committed to the custody of Illinois authorities under the
Illinois Juvenile Court Act. Ill.Rev.Stat. ch. 37, § 701-1 et
seq. The defendants, several administrative officials in the
state correctional and juvenile systems, have moved to dismiss
the complaint for failure to state a claim upon which relief can
be granted. Rule 12(b)(6), F.R.Civ.P. As the following discussion
will indicate, the sole and narrow question presented by this
motion is whether a juvenile, formerly institutionalized in a
state's correctional and juvenile systems, may obtain pecuniary
relief from the officials responsible for the operation of those
systems for their alleged failure to meet their constitutional
duty to provide adequate treatment, when the constitutional
"right to treatment" was not established in the jurisdiction
until almost a year
after plaintiff's release from state custody.
The basis for this lawsuit is plaintiff's unfortunately
extended and apparently unsuccessful contact with the state
institutions and personnel under defendants' supervision. This
history began in February, 1970, when plaintiff was adjudicated a
"minor in need of supervision," Ill.Rev.Stat. ch. 37, § 702-3,
and terminated in January, 1973, upon her release from the
Illinois State Training School for Girls at Geneva by a state
court order. During this period, plaintiff was alternately on
parole and incarcerted at Geneva for violations of her parole
conditions. She was institutionalized for a total of 611 days.
The juvenile proceedings and incarceration of the plaintiff
during this period occurred pursuant to the Juvenile Court Act.
That statute is intended to secure for the juvenile "such care
and guidance . . . as will serve the moral, emotional, . . . and
physical welfare of the minor and the best interests of the
community," and, further, seeks to obtain the "custody, care and
discipline as nearly as possible equivalent to that which should
be given by his parents." Ill.Rev.Stat. ch. 37, § 701-2(1).
It is clear from the complaint and the briefs submitted on this
motion that plaintiff bases her right to recovery upon a claimed
constitutional "right to treatment." Illinois, like many other
states, does not accord alleged juvenile offenders all the
procedural safeguards which federal and state constitutions and
case law mandate for their adult counterparts. In light of the
absence of these protections, plaintiff claims that, as a minor,
she was entitled to, but did not receive, affirmative
rehabilitative treatment "adequate to give her a realistic
opportunity to be cured of, or to improve, her emotional
disorders or her possible mental disorders." In particular,
plaintiff complains of defendants' failure (1) to devise or
implement an adequate individualized treatment plan for her, (2)
to provide sufficient qualified therapeutic personnel, (3) to
make psychiatric treatment available other than during certain
"emergencies," or (4) to act upon recommendations made by the
psychiatrist to whom she was referred during these emergencies.
The allegedly inadequate treatment is claimed to have deprived
plaintiff of her rights to due process of law under the
Fourteenth Amendment and to be free of cruel and unusual
punishment under the Eighth Amendment, and to have violated her
statutory rights under the Juvenile Court Act.
The concept of a constitutionally protected right to treatment
for juveniles has only recently gained judicial acceptance. See
Nelson v. Heyne, 355 F. Supp. 451 (N.D.Ind. 1973), aff'd,
491 F.2d 352 (7th Cir. 1974); Morales v. Turman, 364 F. Supp. 166
(E.D.Texas 1973); Martarella v. Kelley, 349 F. Supp. 575 (S.D.N Y
1972); Inmates of Boys' Training School v. Affleck, 346 F. Supp. 1354
(D.R.I. 1972); Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala.
1971); 344 F. Supp. 373 (M.D.Ala. 1972).
Although not all jurisdictions are in accord with this
development, see New York Ass'n. for Retarded Children, Inc. v.
Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973); Burnham v.
Department of Public Health, 349 F. Supp. 1335 (M.D.Ga. 1972), the
Seventh Circuit recently adopted plaintiff's position. In
affirming Nelson v. Heyne, supra, the court determined that,
under the federal constitution, juvenile offenders are entitled
to "minimum acceptable standards of care and treatment . . . and
the right to individualized care and treatment." Nelson v. Heyne,
supra, 491 F.2d p. 360. The court in Nelson, like the other
courts which have reached a similar conclusion, reasoned that
treatment must be the quid pro quo for society's right to
exercise its parens patriae control over minors without the
fundamental due process safeguards accorded adult offenders. Id.
at 359. See Martarella v. Kelley, supra, 349 F. Supp. at 599-600;
Inmates of Boys' Training School v. Affleck, supra, 346 F. Supp.
at 1364-1365; Wyatt v. Stickney, supra,
325 F. Supp. at 784. Thus, it is clear that were plaintiff still
incarcerated and seeking to have the defendants adopt an adequate
program, there is little doubt but that such an action could
proceed. See Morales v. Turman, supra; Martarella v. Kelley,
supra; Inmates of Boys' Training School v. Affleck, supra; Wyatt
v. Stickney, supra.*fn1
However, two critical distinctions separate Miss Collins from
the plaintiffs in Nelson and the other cases which have
established a constitutional right to treatment. First, plaintiff
here is no longer in residence at a state institution, and,
second, she is asking for $500,000 in compensatory and punitive
relief. In contrast, the cases upon which plaintiff relies
involved juveniles who were still institutionalized and who were
seeking an improvement in their care and treatment through
declaratory and injunctive relief only.
It is well-established that state custodians are not immune
from liability under the civil rights statutes. See Wheeler v.
Glass, 473 F.2d 983 (7th Cir. 1973). However, as recently
well-stated by the Seventh Circuit,
"federal courts have reached a general consensus that
liability for damages under 42 U.S.C. § 1983 must be
determined by the legal standards in existence at the
time of an alleged violation of constitutional
rights. * * * Retroactive application of fresh
precedent has no place in fixing the standard of
conduct for damage suits under Section 1983." Slate
v. McFetridge, 484 F.2d 1169, 1174 (7th Cir. 1973).
The rationale for this rule is obvious: Elemental tenets of
justice would be offended were a person to be held liable for
actions or omissions which he could not be expected to have known
would cause his liability. Id. Although the defendant state
officials may be expected to be reasonable men, "they neither can
nor should be expected to be seers in the crystal ball of
constitutional law," Westberry v. Fisher, 309 F. Supp. 12, 17
(D.Me. 1970); they are not "charged with predicting the future
course of constitutional law." Pierson v. Ray, 386 U.S. 547, 557,
87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). The public interest
would be disserved by the imposition of such a predictive burden,
for qualified people might thereby be deterred from entering
public service. Slate v. McFetridge, supra.
Under these standards, it is clear that money damages are
entirely inappropriate here. First, there was no clear mandate
prior to the Seventh Circuit decision in Nelson, on January 31,
1974, that youths confined under the jurisdiction of a juvenile
court had a constitutional right to rehabilitative treatment.
Second, the U.S. Supreme Court, although on several occasions
assuming that a state must provide treatment, has never
definitively addressed this question. Third, during the time
frame pertinent here, the courts were (and still are) split on
whether this constitutional right exists.
In this situation, the statement made by the court in Slate v.
McFetridge, supra, is particularly applicable:
"Courts should be wary of too broadly construing
cases which set down the law of times past,
particularly where new cases have widened the scope
of doctrine earlier announced. . . . [T]he narrow
reading by a public official of a case on
constitutional law must be upheld unless patently