TORISKY v. SCHWEIKER

No. 05-1496.

446 F.3d 438 (2006)

Daniel TORISKY, as guardian of his son Edward A. Torisky; Laura Mooney, as guardian of her sister Susan Riley; Kenneth Ammons, as guardian of his son Kenneth Ammons, Jr.; Albert Baumgartner, as guardian of his son George Baumgartner; Charles Cihil, as guardian of his son Richard Cihil; Patsy Conca, as guardian of his son Mario Conca; Joan Connors, as guardian of her sister Helen Connors; Peter Demczyk, as guardian of his son Max Demczyk; Guy Di Marzio, as guardian of his brother Carlo Di Marzio; Aldo Giannini, as guardian of his son Ronald Giannini; Maureen Puskar, as guardian of her sister Dorothy Kohut; Jon Lackman, as guardian of his sister Elizabeth Lackman; Charles Miller, as guardian of his daughter Dianne Miller; Mary Pasinski, as guardian of her brother Joseph Pasinski; Jeanne Claus, as guardian of her son William Schwartz; Kenneth Smith, as guardian of his son Larry Smith; Gertrude Smorada, as guardian of her son Dennis Smorada; John Testa, as guardian of his daughter Christine Testa; Gerald Ward, as guardian of his daughter Sharon Ward; Diane Wrana, as guardian of her daughter Christine Wrana; Walter Baranowski, as guardian of his son Leon Baranowski; James E. Ford; Peggy Ford, as guardians of their son William Ford; Naomi Da Pra, as guardian of her sister Marion Hemmis; Eugenia Kolessar, as guardian of her son Gary Kolessar; Joanne Martin, as next friend of her son Kevin Patterson; Gregory Underwood; Margaret Underwood, as guardians of their son Michael Underwood v. Mark S. SCHWEIKER, as Governor of the Commonwealth of Pennsylvania; Department of Public Welfare of the Commonwealth of Pennsylvania; Feather O. Houstoun, individually, and as Secretary of the Department of PublicWelfare of the Commonwealth of Pennsylvania; Nancy R. Thaler, individually, and as Deputy Secretary of the Pennsylvania office of Mental Retardation Pennsylvania Protection and Advocacy, Inc.; ARC Allegheny; ARC Pennsylvania (Intervenors in D.C.) Feather O. Houstoun and Nancy R. Thaler, Appellants.

United States Court of Appeals, Third Circuit.

Opinion Filed April 28, 2006.


Attorney(s) appearing for the Case

Howard C. Ulan, Daniel M. Fellin (Argued), Commonwealth of Pennsylvania, Office of Legal Counsel, Department of Public Welfare, Harrisburg, PA, for Appellants.

Mark J. Murphy (Argued), Disabilities Law Project, Philadelphia, PA, for Intervenors.

Before McKEE and STAPLETON, Circuit Judges, and POLLAK, District Judge.


OPINION OF THE COURT

STAPLETON, Circuit Judge.

This appeal presents the issue of whether a state's affirmative duty under the Due Process Clause to care for and protect a mental health patient in state custody depends upon the individual's custody being involuntary. Contrary to the District Court's resolution of this issue, we conclude that the state does not owe the affirmative duties of care and protection first enunciated in Youngberg v. Romeo...

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