
USCA1 Opinion

	




          December 9, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1787                                               ROGER D. ANYON,                                Plaintiff, Appellant,                                          v.                                LEONARD MACH, ET AL.,                                Defendants, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Selya,  Circuit Judges.                                               ______________                                 ___________________               Roger D. Anyon on brief pro se.               ______________               Scott  Harshbarger, Attorney General, and William L. Pardee,               __________________                        _________________          Assistant Attorney General, on brief for appellees, Leonard Mach,          Eileen Elias,  Robert Fine,  William O'Leary,  Elaine Hill,  Paul          Scopa and Rick Picket.                 Jon  S, Hartmere,  Special  Assistant  Attorney General,  on               ________________          brief for appellees, Gregory M.S. Canfield and Barbara Schwartz.                                  __________________                                  __________________                 Per Curiam.  Pro-se appellant, Roger Anyon, a patient at                 __________            the  Massachusetts Treatment  Center  for Sexually  Dangerous            Persons,  alleges  that  the   recently  revised  eligibility            requirements for reintegrating Treatment Center patients into            the  community   violate  his   rights   under  the   federal            constitution  and the  federal consent  decree  requiring the            remedying of conditions at the Treatment Center.   See, e.g.,                                                               ___  ___            Williams v. Lesiak, 822 F.2d 1223 (1st Cir. 1987); Langton v.            ________    ______                                 _______            Johnston,  928  F.2d  1206   (1st  Cir.  1991).     He  seeks            ________            declaratory  and injunctive relief.1   Appellees are officers            and  employees of  the Commonwealth  of  Massachusetts.   The            district court  dismissed Anyon's  complaint  for failure  to            state a claim upon which relief can be granted.  We affirm.                                      Background                                      Background                 Anyon is under  commitment to the Treatment Center for a            period  of one day  to life.   He is also  under a concurrent            criminal sentence of imprisonment for  life.  As a patient at            the  Treatment Center,  Anyon is  entitled  to mental  health            treatment   and  to  be  released  when  no  longer  sexually            dangerous.  Mass. Gen. L. ch. 123A   9.  Upon a determination            that  he  is  no  longer  sexually  dangerous,  he  would  be            discharged  from the  Treatment Center  and  returned to  the            Department of Corrections to serve out any unexpired criminal            sentence.  Id.  The Massachusetts Department of Mental Health                       __                                            ____________________            1.  Anyon has dropped all claims seeking monetary relief.                                         -2-            is required to establish a program at the Treatment Center to            provide "in a manner consistent with security considerations,            for the restrictive  integration of [a]  patient into a  non-            custodial  environment."   Mass. Gen.  L. ch. 123A,    8.   A            patient  will be  eligible  for this  program only  if, inter                                                                    _____            alia, "he  will not present  a danger to the  community under            ____            the  controls provided by  the program."   Id.   Furthermore,                                                       __            under  a partial  consent decree  first entered in  1975, the            Department  of  Mental Health  has agreed  to develop  a plan            providing   for  adequate  treatment   for  patients  at  the            Treatment Center.   Among  other things,  the Department  has            agreed to provide "for the day or other short-term release of            Treatment Center patients for  approved programs outside  the            Treatment Center where  such relief is deemed  appropriate by            the Department of  Mental Health."  See Langton,  928 F.2d at                                                ___ _______            1228.                 Anyon participated in the short-term release program for            several  years  prior to  August  1991.    At that  time,  in            response  to escapes by  two residents from  the program, the            Department  suspended   the  program  for  review  to  ensure            consistency with  both public  safety and  clinical concerns.            As a result  of the review, the Department  adopted new rules            for what is  now called the Transition Program.   Under these            revised  rules,  a resident,  like  Anyon,  who  is  under  a            criminal sentence and neither paroled to the Treatment Center                                         -3-            nor  eligible for parole, is ineligible to participate in the            program.  Anyon  asserts that these Transition  Program rules            deprive him  of his constitutional rights to  due process and            equal  protection,  and  violate  his  constitutional  rights            against ex  post  facto  legislation  and  double  jeopardy.2            Finally he  asserts that  the rules are  in violation  of the            federal consent decree.                                      Discussion                                      Discussion                 Anyon has failed to allege sufficient facts to support a            claim  that either his substantive or his procedural right to            due process has  been violated.  The revision  of the program            was  not  so "outrageous"  as  to constitute  a  violation of            substantive due process.   See Amsden v. Moran  904 F.2d 748,                                       ___ ______    _____            754  (1st Cir.  1990),  cert. denied,  498 U.S.  1041 (1991).                                    ____  ______            Moreover,  the state  is  not  prohibited  from  making  this            revision  by  the  fact  that  it  extinguished  any  liberty            interest Anyon may have had  under the prior rules for short-            term release.  See Tracy  v. Salamack, 572 F.2d 393,  396 (2d                           ___ _____     ________            Cir.   1978)  (prisoners  who  were  previously  entitled  to            participate in transition program have no entitlement to such            participation  which would  "have the  effect of  prohibiting            alteration   of  the   underlying  law   which  creates   the            entitlement").   Finally, since  Anyon concedes that  he does                                            ____________________            2.  Anyon  also asserts that the revised program violates the            eighth  amendment  prohibition  against  cruel  and   unusual            punishment.  This claim is without merit.                                         -4-            not meet the  eligibility requirements of the  revised rules,            he no longer has any state created liberty interest in short-            term  release  which  would implicate  the  federal  right to            procedural due process.                    Likewise,  the  Transition  Program  rules  are  not  in            violation of the equal protection clause.  The distinction in            the  revised rules between civilly committed patients under a            criminal sentence and those who are not is rationally related            to the legitimate  state interest in  ensuring the safety  of            the community.  See Whiting v. Westerly, 942 F.2d 18, 23 (1st                            ___ _______    ________            Cir. 1991).                 Anyon's allegations  that the  Transition Program  rules            violate the double jeopardy and  ex post facto clauses of the            Constitution  fail because both these clauses pertain only to            punishments  inflicted   by  the  government.     See,  e.g.,                                                              ___   ___            Helvering  v. Mitchell, 303  U.S. 391, 398-99  (1938) (double            _________     ________            jeopardy); Cummings  v. Missouri, 71 U.S. (4 Wall.) 277, 325-                       ________     ________            26 (1867) (ex post facto).   The revised rules for short-term            release,  however, are not punitive but rather related to the            state's concern for  community safety.  See  United States v.                                                    ___  _____________            Halper, 490 U.S. 435, 448 (1989) (civil as well as a criminal            ______            sanction constitutes punishment  only when it serves  aims of            retribution or deterrence).   As  regards Anyon's  allegation            that he has been "punished" by being deprived of his previous            right  to  participate  in  the  short-term  release program,                                         -5-            insofar as this is an allegation that he has been deprived of            the adequate treatment  required by the constitution  and the            federal  consent  decree,  we  think  this  concern  is  best            addressed through  an action  to enforce  the consent  decree            since  that  decree "'require[s]  the  provision of  adequate            treatment  for [Treatment Center] patients' at a level [even]            beyond  that   required  by  any   applicable  constitutional            minima."   Langton, 928 F.2d  at 1217.   Insofar as it  is an                       _______            allegation that he has been deprived of treatment beyond that            required  by the  constitution and  the  consent decree,  the            revised  rules are  not  punitive but  the  "revocation of  a            privilege voluntarily granted."   See Helvering, 303  U.S. at                                              ___ _________            399.  As such, they do not implicate either the ex post facto            or the double jeopardy clause.3                  Finally,  we find  no  error  in  the  district  court's            failure to consider Anyon's claims that his  rights under the            applicable  consent   decree   have  been   violated.     The            appropriate  vehicle for enforcement of the consent decree is            an action for  contempt brought before the  court responsible            for the decree.   See, e.g.,  DeGidio v. Pung, 920  F.2d 525,                              ___  ___    _______    ____            534 (8th Cir.  1990); Green v. McKaskle, 788  F.2d 1116, 1123                                  _____    ________            (5th  Cir.  1986).   Allowing  the  decree to  be  challenged            through an individual  action for declaratory and  injunctive                                            ____________________            3.  We express  no  opinion  as to  whether  or  not  Anyon's            participation in the  release program is within  the scope of            treatment required by the constitution or the consent decree.                                         -6-            relief  "would tend  to  discourage governmental  authorities            from  entering  into   decrees  in  public  law   litigation,            encourage  the splintering  of  civil  rights  claims  on  an            individual basis, and promote disrespect for judicial decrees            duly  entered following careful proactive review of the often            complex mix  of individual  and institutional  considerations            involved in such litigation."  Miller v. Dept. of Correction,                                           ______    ___________________            No. 91-2183, slip. op. at 15 (1st Cir., July 14, 1993).                 Affirmed.                 ________                                         -7-
