Susan B. ex rel. Lisa S. v. Planavsky , 60 N.C. App. 77 ( 1982 )

WELLS, Judge.

I

Plaintiffs’ claims for relief under 42 U.S.C. §§ 1983 and 1985.

The forecast of evidence in this case does not show that defendants, or any of them, denied plaintiffs their rights to the advice of counsel, but rather shows that plaintiffs sought and obtained the advice and assistance of counsel during plaintiffs’ period of commitment to Dix Hospital. While the forecast of evidence does regrettably show that defendants manifested a significant degree of resentment toward and disapproval of plaintiffs’ use of “outside” counsel, such resentment and disapproval did not result in a denial of plaintiffs’ rights in any respect. Under this forecast of evidence, the trial court correctly entered summary judgment as to plaintiffs’ (42 U.S.C. §§ 1983 and 1985) claims on their alleged denial of their rights to or access to counsel of their choice.

II

Plaintiffs’ claims for relief under G.S. 122-55.13 and .14.¹

First, we hold that pursuant to the provisions of G.S. 122-24,² defendants may not be held answerable in money damages for their acts towards plaintiffs as alleged in plaintiffs’ complaint, all of such acts or actions falling within the provisions of G.S. 122-24. We hold, however, that defendants are not immune under G.S. 122-24 from plaintiffs’ claims for injunctive relief; otherwise, the provisions of G.S. 122-55.13 and .14 would be meaningless. It is clear to us from the depositions of Mrs. Crowell and defendants Planavsky, Sauber, and Oppenheim, that there were genuine, material issues of fact raised with respect to Susan B.’s entitlement to injunctive relief as to her need and desire for private mental health evaluation. We are frank to note that the attitude of Dr. Planavsky in this respect — as reflected by Mrs. Crowell’s deposition — raises rather serious factual implications with respect to patients’ rights to such private mental health advice or treatment. Plaintiffs did not seek an injunction pendente lite, however, and by the time this matter came on for hearing before Judge Bailey on defendants’ motion for summary judgment, neither plaintiff was a patient at Dix. The question of plaintiffs’ entitlement to injunctive relief was mooted by these circumstances, and the trial court therefore properly entered summary judgment as to this aspect of plaintiffs’ action.

Ill

Plaintiffs’ claims for relief under 20 U.S.C. § 1401 et seq. and G.S. 115-363 et seq.

These statutes deal with educational entitlements of handicapped children. While we recognize that mentally disturbed minors are within the statutory classification of handicapped children or children with special needs, neither the allegations in plaintiffs’ complaint nor the forecast of evidence shows a valid claim under these statutes. We note that plaintiffs made no attempt in their brief to support these claims with argument or authority. Summary judgment as to these claims was properly entered.

> I — <

Plaintiff Susan B.’s Claim for relief under G.S. 7A-543.

The statute, in pertinent part, provides:

§ 7A-543. Duty to report child abuse or neglect.

Any person or institution who has cause to suspect that any juvenile is abused or neglected shall report the case of that juvenile to the Director of the Department of Social Services in the county where the juvenile resides or is found. The report may be made orally, by telephone, or in writing. The report shall include information as is known to the person making it including the name and address of the juvenile; the name and address of the juvenile’s parent, guardian, or caretaker; the age of the juvenile; the present whereabouts of the juvenile if not at the home address; the nature and extent of any injury or condition resulting from abuse or neglect and any other information which the person making the report believes might be helpful in establishing the need for protective services or court intervention.

The forecast of evidence before the trial court shows one incident of physically offensive contact between Susan B. and a male staff member. We hold that this single, isolated incident of physically offensive conduct, not resulting in any physical harm, does not show a situation involving child abuse requiring a report under the statute. We are careful to note, however, that we do not condone the response of those defendants who either chose to pressure Susan to confront the offending staff member in their (staff member) presence or who apparently failed to vigorously pursue and investigate her complaint. While there was no statutory violation involved, it appears to us that the staff’s duty to Susan (and to other female patients in the unit) was compromised by the staff attitude and inaction as to this incident. We nevertheless hold that summary judgment was properly entered for defendants as to this claim.

In the materials before the trial court, it showed that essential elements of each of plaintiffs’ claims were either nonexistent or that plaintiffs could not produce evidence to support essential elements of their claims. Summary judgment was therefore properly entered in this case. Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982).

The forecast of evidence before the trial court does not indicate that there exists a class of persons, or any other persons, committed as voluntary patients to Dix Hospital who are or may be entitled to any relief similar to the claims asserted by plaintiffs in this action. See G.S. 1A-1, Rule 23 of the Rules of Civil Procedure. Summary judgment was appropriately entered as to this aspect of plaintiffs’ action.

The judgment of the trial court must be and is

Affirmed.

Judges VAUGHN and WHICHARD concur.

1 . § 122-55.13. Declaration of policy on rights of minor patients.

It is the policy of North Carolina to insure basic rights to each minor patient of a treatment facility. These rights include the right to dignity, humane care, and proper adult supervision and guidance. In recognition of his status as a developing individual, the minor shall be provided opportunities to enable him to mature physically, emotionally, intellectually, socially, and vocationally. In view of the physical, emotional, and intellectual immaturity of the minor, the treatment facility shall stand in loco parentis to the minor when he is in residence.

§ 122-55.14. Rights of minor patients.

(a) Each minor patient of a treatment facility may at all reasonable times:

(1) Communicate and consult with the agency or individual having legal custody of him; and

(2) Communicate and consult with legal counsel and private mental health or mental retardation specialists of his or his legal custodian’s or guardian’s choice, at his own expense.

2 . § 122-24. Administrators, chiefs of medical services and staff members not personally liable.

No administrator, chief of medical services or any staff member under the supervision and direction of the administrator or chief of medical services of any State hospital shall be personally liable for any act or thing done under or in pursuance of any of the provisions of this Chapter.