
USCA1 Opinion

	




          July 14, 1993         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 91-2183                                               SHERMAN MILLER,                                Plaintiff, Appellant,                                          v.                          DEPARTMENT OF CORRECTION, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Sherman Miller on brief pro se.               ______________               Scott Harshbarger, Attorney General,  and Timothy A. Mullen,               _________________                         _________________          Assistant Attorney General, on brief for appellees.                                  __________________                                  __________________                    Per Curiam.   Pro se plaintiff  Sherman Miller  appeals                    Per Curiam.                    __________    ___ __          from  a district  court judgment  for the  defendants in  this 42          U.S.C.    1983  action.   For  the  reasons discussed  below,  we          affirm.                                            I                                          I                    Miller is sixty-five years  old.  For most of  the past          fifteen years, he has been a resident of the Treatment Center for          Sexually Dangerous Persons  located in Bridgewater, Massachusetts          (hereinafter:  "Treatment  Center" or "BTC").   Following a  1978          conviction  for rape, Miller was committed to the BTC pursuant to          a Suffolk  Superior  Court  order  adjudicating  him  a  Sexually          Dangerous Person ("SDP")  pursuant to  M.G.L. c. 123A,    6  (re-          pealed) and  directing that he  "be voluntarily committed  to the                                              ___________          Treatment Center  . . . ." (emphasis supplied).   In 1984, Miller          commenced this civil rights action.  The amended complaint sought          declaratory and injunctive relief and damages for alleged consti-          tutional deprivations  attending his confinement at the BTC.  All          named defendants  are state  officials  formerly responsible  for          operations  at the BTC.1  Although the amended complaint asserted          seven claims, only two  are implicated by this appeal.   Miller's          first claim alleged  that the defendants  violated his  constitu-          tional right of access to the courts by maintaining an inadequate                                        ____________________               1The defendants are former Department of Corrections Commis-          sioner Michael  Fair, Charles  Gaughan (former Superintendent  of          the Massachusetts Correctional Institution at Bridgewater), James          Callahan  (former  Commissioner  of   the  Department  of  Mental          Health), Richard  Boucher (former  Administrator of the  BTC) and          Mildred Gil (law librarian at the BTC).                                          2          law library and restricting library access.  The other  surviving          claim alleged that the defendants violated Miller's constitution-          al right  to rehabilitative treatment.   Miller alleged  that the          defendants failed to develop an individual treatment plan ("ITP")          for  him although he believed  such plans had  been developed for          other  BTC patients and  that the denial  of an ITP  violated his          right to due  process and equal  protection under the  Fourteenth          Amendment.2  He sought injunctive relief requiring defendants  to          develop  an ITP which would afford him a realistic opportunity to          improve his mental condition, and requiring defendants to  afford          him adequate access to the BTC law library.                    On December  10, 1985,  the  district court  granted  a          preliminary injunction on Miller's "access to the courts"  claim.          The order required  the defendants to  obtain certain  additional          volumes for the  law library  and to ensure  that Miller  receive          reasonable  photocopying  services.   Miller's  criminal sentence          expired on May 8, 1989.  No significant judicial proceedings took          place thereafter until the  case was called for trial  in January          1991.  Relying on the expiration of his criminal sentence, Miller          sought release from  the BTC by instituting  a state-court habeas          corpus proceeding.  On  March 20, 1991, the superior  court ruled          that  Miller had  been involuntarily  committed to  the Treatment                                 _____________          Center  and, therefore, was  not entitled  to release  until such          time as  his adjudication as  a SDP  was revoked under  M.G.L. c.                                        ____________________               2Miller  alleged that  the defendants  discriminated against          him because of his unique "voluntary"  commitment status and that          the  BTC maintained  that  Miller's right  to participate  in its          programs  was inferior  to  that of  involuntarily committed  BTC          patients.                                           3          123A,   9.3  Thus, but  for his status as a SDP, Miller  would be          a  free man.  Nevertheless, he has never submitted an administra-          tive request for release or reclassification.                    Miller's   1983  action was called for trial in January          1991.  Both sides sought a continuance; the BTC had lost its case          file and Miller required  further discovery.  The district  judge          continued the trial to April but  warned that belated dispositive          motions  would not be  allowed to delay the  trial further.  Four          days before the  rescheduled trial, defendants filed  a motion to          dismiss  or for summary judgment, based on this court's March 22,          1991 decision in  Langton v.  Johnston, 928 F.2d  1206 (1st  Cir.                            _______     ________          1991).  Langton resolved an appeal from a class action, Bruder v.                  _______                                         ______          Johnston, brought on  behalf of all patients civilly committed to          ________          the BTC.4  The  Langton plaintiffs sought to have  the defendants                          _______              all of them state officials responsible for operations at the          BTC     held in contempt of certain consent decrees requiring the          establishment of various therapeutic, educational, and vocational          programs at the BTC.   See generally Williams v. Lesiak, 822 F.2d                                 ___ _________ ________    ______          1223 (1st Cir. 1987) (describing consent decrees).  Like  Miller,          the Langton  plaintiffs had raised an  inadequate treatment claim              _______          that  alleged, inter  alia,  that the  defendants  had failed  to                         _____  ____                                        ____________________               3The superior court ruling was based  on the statements made          by the committing  judge during the course of the SDP hearing, as          well  as Miller's own  conduct.  The  Massachusetts Appeals Court          affirmed.  See  Miller v. Tink,  33 Mass.  App. Ct. 1103  (1992),                     ___  ______    ____          further rev. denied, 413 Mass. 1106 (1992).          _______ ____ ______               4We refer to  Bruder and Langton  interchangeably.  We  note                             ______     _______          that  Miller's     1983 action  and  Bruder  were  pending before                                               ______          different district judges at roughly  the same time, although the          Bruder  suit  was filed  two years  after  Miller's suit  and the          ______          Miller  case was not resolved until almost two years after Bruder                                                                     ______          was decided.   Miller unsuccessfully filed a motion  to intervene          as a class representative in Bruder.  See also infra note 14.                                       ______   ___ ____ _____                                          4          provide treatment  reasonably designed  to  bring about  the  pa-          tients' recovery.  See 928 F.2d at 1212.  Our decision in Langton                             ___                                    _______          upheld  the district court's ruling that  the defendants were not          in contempt  of  the  consent decrees  but  rather  had  achieved          substantial compliance  with  those decrees  notwithstanding  the          fact that the  ITPs of many patients were  not being fully imple-          mented.  We also observed that the BTC had a "current and compre-          hensive law  library."   See  id. at  1213, 1216,  1220-23.   The                                   ___  ___          defendants contended  that Langton barred  Miller's claims  under                                     _______          the doctrine  of res  judicata  or collateral  estoppel.   Miller                           ___  ________          moved to strike defendants' dispositive motion.5                    When the case was called for trial, defendants'  motion          to dismiss/for summary  judgment and Miller's  motions to  strike          and compel  discovery  remained  pending.    The  district  court          initially told Miller that he would  not have to file a  response          to  defendants'  motion  and  instructed  defendants'  counsel to          assert  their  legal arguments  in the  context  of a  motion for          directed verdict.   Miller, however, was not  prepared for trial.          He  had not subpoenaed any  witnesses, being uncertain  as to how          the  court would proceed on the pending motions.6  Loath to delay          the resolution of Miller's claims any longer, the  district court                                        ____________________               5Shortly before defendants filed their motion to dismiss/for          summary  judgment, Miller  moved  to compel  discovery and  for a          judgment of contempt.   He sought to compel Michael  Stevens, the          Chairman  of the  BTC's  Reintegration Review  Board ("RRB"),  to          complete his  deposition and produce documents.   Miller's motion          to  strike argued  that defendants  improperly moved  for summary          judgment before discovery was completed.               6Miller complained that  he had been unable  to complete the          deposition of Michael Stevens, Chairman of the BTC's RRB.  Miller          hoped to  elicit Stevens'  admission that Miller's  treatment was          not  being  based on  professional  judgment  under Youngberg  v.                                                              _________          Romeo, 457 U.S. 307 (1982).          _____                                          5          expressed  a preference  for  proceeding  to  trial.   But  after          hearing defendants'  arguments, the court  expressed some  uncer-          tainty as  to whether  the  case would  be tried  or resolved  on          defendants'  motion.7   The  court  recessed to  allow  Miller to          prepare a subpoena for Stevens,  as well as a witness list  and a          proffer indicating how Miller's evidence might defeat defendants'          Langton/Bruder  defense.   After the  recess, Miller  submitted a          _______ ______          witness  list identifying  six witnesses  on  his "access  to the          courts"  claim and  seven witnesses  on his  inadequate treatment          claim.8  He  argued that Bruder did not bar  these claims because                                   ______          (1) Bruder was not decided  on constitutional grounds; (2) Miller              ______          had  not been  a party  to  Bruder, in  part due  to his  alleged                                      ______          voluntary commitment status; (3) many of the issues Miller sought                                        ____________________               7The district court  explained to Miller, "If you don't have          a proffer of evidence that would establish if credited that there          is a cause of action remaining in the face of the legal arguments          the  defendant is asserting, then whether we  do it as a trial or                                       ____ _______ __  __ __ __ _ _____ __          do  it as a motion  for a summary judgment, it's  time to end the          __  __ __ _ ______  ___ _ _______ ________          case . . . ." (emphasis added).               8Miller's proffer indicated that  he expected two members of          the  BTC's  Reintegration Review  Board      Dr.  Mark Sokol  and          Michael  Stevens     to identify  the treatments  recommended for          Miller that had not been provided.  Miller further indicated that          he  wished to question  Dr. Albert Jurgela,  Director of Clinical          Services, to find out why various recommended treatments had  not          been  provided.  Miller complained  that the BTC  refused to give          him clozapine    a drug  Miller had taken for six or  seven years          prior to his  incarceration and  which allegedly  allowed him  to          function normally in society    even though the BTC's RRB specif-          ically recommended it.  He implied  that his only hope of release          might  rest on securing clozapine therapy.  Miller wanted to call          Dr. Daniel Kreigman and Dr. Martin Miller to inquire  why the BTC          was not giving him clozapine.  He expressed the hope that another          witness, Dr. Guy Seymour, would testify that Miller suffered from          schizophrenia, thus justifying the use of clozapine.  (continued)               In  support of  his  "access to  the  courts" claim,  Miller          sought to prove that certain restrictions  on his movement within          the law  library violated the  constitutional right of  access to          the  courts of  inmates he  was assisting in  his capacity  as an          appointed research assistant.                                            6          to raise concerning his treatment arose after Bruder was decided,                                                        ______          and  (4) Bruder merely determined that the state was not required                   ______          to  implement all  treatments recommended  in a  particular SDP's          ITP, it did not decide what the state was required  to provide to          a SDP,  such  as Miller,  whose  criminal sentence  had  expired.          Defendants reiterated  their argument that  Langton/Bruder barred                                                      _______ ______          Miller's remaining claims.                    The  district court  concluded that  the case  could be          resolved by affording  Miller an opportunity  to file  affidavits          and memoranda in opposition to defendants' arguments.  The  court          adjourned the  "trial" after  one day,  allowing Miller  leave to          submit such  filings.    Thereafter,  Miller filed  a  number  of          submissions  in support  of  his claims.    With respect  to  his          inadequate  treatment  claim, Miller  averred  that  he had  been          adjudicated  a SDP  and committed  to the  BTC in 1979,  that the          BTC's RRB had formulated  an extensive treatment plan for  him on          November 1, 1989, but that  he had "not been afforded one  of the          behavioral and pharmacological  treatment modalities  recommended          by the [RRB]."  He reiterated his complaint that he  had not been          treated with clozapine, notwithstanding the RRB's recommendation.                    On June 11,  1991, the district court issued a memoran-          dum of  decision denying relief on  Miller's inadequate treatment          claim.   The  court ruled  that it  was not  necessary to  decide          whether Langton/Bruder barred  the claim under  the doctrines  of                  _______ ______          res  judicata and collateral  estoppel.  The  court ruled instead          ___  ________          that Langton/Bruder precluded relief under the doctrine of  stare               _______ ______                                         _____          decisis.   Noting that Miller had based  his inadequate treatment          _______                                          7          claim largely on the fact that he had not been given clozapine as          recommended by the RRB, the court reasoned:                      In light of the recognition by the courts  in                    Bruder and  Langton  that patients  were  not                    ______      _______                    receiving all of the treatment recommended in                    their individual treatment plans,  . . . pla-                    intiff  has failed  to demonstrate  a genuine                                ______  __ ___________  _ _______                    issue of  material fact on the  claim of con-                    _____ __  ________ ____ __ ___  _____ __ ____                    stitutionally inadequate treatment . . . [and                    _____________ __________ _________                    the] defendants are entitled to judgment as a                    matter of law.  (Emphasis supplied.)                    The court awarded Miller partial relief on his  "access          to the  courts" claim,9 but  held that he  had not stated  an ac-          tionable claim  for denial of access  to the courts on  behalf of          his  fellow  patients because  he  failed  to allege  that  those          patients had no  avenue of  access to the  courts except  through          Miller.                      Miller  filed  a  motion  for  partial reconsideration,          arguing that  the district court  erred in construing  his inade-          quate treatment claim as similar to that raised by the plaintiffs          in Langton/Bruder.  Relying on his May 13, 1991 affidavit, Miller             _______ ______          argued that, unlike the Langton  plaintiffs, he was not complain-                                  _______          ing  that he had  not received all  the treatments  that had been                                         ___          recommended  for him.  Rather, Miller's complaint was that he had          not received any of the behavioral and pharmacological  treatment                       ___          modalities that had been recommended for him by the  RRB in 1989.          Miller argued  that simply because the BTC was not able to imple-          ment  all of the programs  recommended in each  patient's ITP did                ___          not mean that the BTC had no obligation to implement  some of the                                                                ____                                        ____________________               9The court issued a  judgment declaring that as  of December          10, 1985,  the BTC  law library was  constitutionally inadequate.          Miller was awarded  $500 for attorney fees incurred  in enforcing          the district court's December 10, 1985 preliminary injunction.                                          8          programs repeatedly recommended for him.  Miller further  averred          that his group  therapist and another staff  person were recently          "bumped," which would leave him without treatment.                    The defendants  filed an  opposition which included  an          affidavit from Dr.  Jurgela and  copies of the  RRB's reports  on          Miller's  11/1/89  and 7/25/90  status  reviews.10   Dr.  Jurgela          attested  that  Miller's  therapist  continued to  provide  group          therapy  to Miller  notwithstanding the  fact  that she  had been          "bumped,"  and that Miller also received treatment in the form of          weekly "house  meetings" led  by  another staff  clinician.   Dr.          Jurgela acknowledged, however, that the current RRB report recom-          mended  that  Miller   receive  individual  therapy,  personality          testing,  general  behavioral  and plethysmographic  assessments,          covert conditioning, relapse prevention, and anger and depression          management, but that Miller had not received any of these assess-          ments or treatments.11   He also acknowledged that  a psychophar-          macological consultation had been recommended for Miller, presum-          ably a reference to  the recommended clozapine therapy.   The RRB          reports confirmed Miller's allegation that the RRB had recommend-          ed a trial use of clozapine in 1989 and that, as of July 1990, he          had received neither clozapine nor the other recommended services          noted  immediately above.   The  1989 RRB  report  concluded that          Miller  remained a  SDP whose prognosis  was poor.   The 1990 RRB          report noted that  services might  be lacking for  Miller and  if                                        ____________________               10Under the consent decree, the RRB is required to  evaluate          each  patient, on an annual  basis, to determine  the progress of          therapy and the advisability of permitting the patient to reenter          the community on a limited basis.  See Langton, 928 F.2d at 1210.                                             ___ _______               11Dr. Jurgela noted that Department of Mental Health ("DMH")          policy prohibited the use of plethysmography at any DMH facility.                                          9          that were the case, as opposed to Miller simply resisting servic-          es that had been offered, "such conditions should be corrected as          soon  as possible."  Miller responded  to the defendants' opposi-          tion, arguing  that defendants' evidence established  that of the          ten  treatment modalities that had been recommended by the RRB in          1989, he had received only one (group therapy).                    The district court rejected Miller's contentions on the          ground that  Miller  had "not  demonstrated  a genuine  issue  of          material fact on  the adequacy  of treatment claim."   The  court          reiterated that "the Treatment Center is not obligated to  imple-          ment the  [ITP] drawn up  by the  [RRB] in all  its details"  and          found that Miller's claim that  he had "not been afforded  one of          the  behavioral and  pharmacological treatment  modalities recom-          mended by the [RRB]" in 1989 was "a factual assertion not clearly          supported  by  the  ambiguous  language  in"  Miller's  affidavit          because  Miller  had failed  to identify  a treatment  other than          clozapine that he had not received.  The court further found that          Miller's claim that he  was no longer receiving any  treatment             since certain staff members had been "bump[ed]"    merely assert-          ed "sketchy facts  and unsupported conclusions"  which failed  to          comply with  Fed. R. Civ.  P. 56(e).   The court  denied Miller's          motion  for partial  reconsideration and  his amended  motion for          partial reconsideration.                    Miller then  filed  other  postjudgment  motions:    to          supplement the pleadings, reopen the case,  and amend the pleadi-          ngs to conform to the facts  set forth in Miller's September  23,          1991 affidavit ("Supplementary Affidavit").  In the first motion,          Miller argued that further reconsideration  was warranted because                                          10          the court had failed to  apprise him of the requirements  of Rule          56(e).  Miller's Supplementary Affidavit spelled out each  recom-          mended treatment  with  which  he  had not  been  provided  since          1986.12   The court  declined further reconsideration,  asserting          that  its June  11, 1991  decision was  not based  on defendants'          motion for summary judgment,  therefore Miller's alleged unaware-          ness of the requirements of Rule 56(e) was irrelevant.  The court          further found that Miller's Supplementary Affidavit  disclosed no          set  of facts that might entitle him to relief and that amendment          of  the pleadings following "trial"  was not in  the interests of          justice.  The  court held that  Miller's Supplementary  Affidavit          was  not part  of the record.   Miller's motions  were denied and          this appeal followed.                                          II                                          II                    The district court orders disposing of Miller's postju-          dgment motions  are reviewable  for "abuse of  discretion."   See                                                                        ___          Desenne v. Jamestown  Boat Yard,  968 F.2d 1388,  1392 (1st  Cir.          _______    _________  ____ ____          1992)(deci-sion on Rule 59(e) motion for reconsideration reviewed          for  abuse of  discretion); Rodriguez-Antuna  v. Chase  Manhattan                                      ________________     _____  _________          Bank Corporation, 871 F.2d  1, 3 (1st Cir. 1989)(denials  of Rule          ____ ___________          60(b) motions may be reversed only for abuse of  discretion).  We          find  that the district  court acted well  within its discretion,          particularly  in view  of the  extreme tardiness of  Miller's re-          quests  for relief  in an  action commenced  in 1984.   Moreover,                                        ____________________               12Among these  were  treatments for  anger,  depression  and          self-control management, personality testing,  relapse prevention          treatment  and plethysmographic  assessment.   But  cf. note  11,                                                         ___  ___          supra.          _____                                          11          Miller misapprehends the district court ruling on his  inadequate          treatment claim.  The district  court correctly ruled that Miller          failed  to  provide evidentiary  support,  or  even a  sufficient          proffer of evidence,  to support the  claim of inadequate  treat-          ment, since he  failed to show that  the claim was not  precluded          under  the doctrine  of  stare decisis  by  Langton/Bruder.   The                                   _____ _______      _______ ______          district court arrived at  its decision on the basis  of Miller's          ambiguous affidavit attesting that "he had 'not been afforded one                                                                        ___          of the behavioral and pharmacological treatment modalities recom-          mended by the [RRB]' . . . ."   Memorandum of August 26, 1991, at          p.  2.   The  district  court  supportably construed  the  quoted          language as  a  reference  to  the BTC's  failure  to  administer          clozapine,  as recommended  by the RRB.   Id.  at 4.   Relying on                                                    ___          Langton, the district court ruled  that, without more, the  BTC's          _______          mere failure  to  provide  this  one  recommended  treatment  was          insufficient  to demonstrate  a genuine  issue of  material fact.          Id. at pp. 3-4.   As concerns  the alleged "bumping" of  Miller's          ___          "therapists," see  id. at 4,  the district court  correctly noted                        ___  ___          that the term "bumping" is ambiguous and conclusory.  Id. at 4-5.                                                                ___          Thus, the district  court's disposition of  Miller's motions  for          reconsideration and for relief from judgment, see id. at pp. 5-6,                                                        ___ ___          constituted no abuse of its discretion.                    Thereafter,   Miller   filed  additional   postjudgment          motions.   See   Memorandum of  November 4,  1991.   The district                     ___          court denied Miller's motion to amend the pleadings to conform to          his  Supplementary Affidavit.   See  Fed.  R. Civ.  P. 15(a),(b).                                          ___          Here, we believe the district court erred in holding that Miller-          's "Supplementary Affidavit reveal[ed] no set of facts that would                                          12          entitle  plaintiff to  relief  under the  law  as stated  in  the          Memorandum and Order of June 11, 1991."   Id. at 3.  The June  11                                                    ___          order relied on  Langton/Bruder, but the  Supplementary Affidavit                           _______ ______          filed by  Miller materially altered the  record evidence tendered          in support of his inadequate treatment claim by relating numerous          other procedures  and therapies recommended for Miller by the RRB          which were not afforded him by the BTC.  In our view, the Supple-          mentary Affidavit may well have raised a genuine issue of materi-          al  fact as  to whether  Miller's constitutional  claim based  on          inadequate  treatment was actionable.  Nevertheless, the district          court did not  abuse its  discretion.  This  court determined  in          Langton that  it was  unnecessary,  indeed inadvisable,  for  the          _______          district court to  address the constitutional  claim to  adequate          treatment "because the  existing consent decrees 'require[d]  the          provision of  adequate treatment for  [BTC] patients' at  a level          beyond that  required by any  applicable constitutional  minima."          Langton,  928 F.2d at 1217.   And so it  is here.  Thus, although          _______          Miller attempted to  assert a constitutional  right to  treatment          based on professional judgment under Youngberg v. Romeo, 457 U.S.                                               _________    _____          307, 323 (1982), and  such cases as Ohlinger v.  Watson, 652 F.2d                                              ________     ______          775, 777 (9th Cir. 1981) (holding that sex offenders committed to          indeterminate  life  sentences  have  a  constitutional right  to          treatment providing a realistic opportunity for cure or  improve-          ment), and  Cameron v. Tomes, 783  F. Supp. 1511, 1516  (D. Mass.                      _______    _____          1992) (holding  that  involuntarily  committed  SDP  at  BTC  has          constitutional  right to  treatment based  on professional  judg-                                          13          ment), modified,  slip op. 92-1343 (1st Cir.,  March 31, 1993),13                 ________          we  think  the district  court did  not  abuse its  discretion by          dismissing Miller's postjudgment motion to amend the pleadings so          late in the day.                                         III                                         III                    Miller further argues that the district court erred  in          holding that Langton bars his inadequate treatment claim  because                       _______          he was not a party to Langton.  Nevertheless, and notwithstanding                                _______          the dispute over whether Miller was voluntarily or  involuntarily          committed to the BTC, see supra note 3 & accompanying text, it is                                ___ _____          clear that  he is among  the plaintiff  class in  Langton/Bruder,                                                            _______ ______          which is defined as "all individuals  who are presently or in the          future will be civilly  committed to the Treatment Center."   See                                                                        ___          Bruder, slip  op. at  p. 43.14   Moreover,  both  Miller and  the          ______          Bruder plaintiffs charged that the treatment  received at the BTC          ______          was not constitutionally adequate.                      Finally, even if Miller's  rights under the  applicable          consent decree  were violated, the appropriate  vehicle for their          enforcement  is not  a  section 1983  action  but an  action  for          contempt (like the one  filed by the Bruder plaintiffs  two years                                               ______          after Miller commenced this action).  See, e.g., DeGidio v. Pung,                                                ___  ____  _______    ____                                        ____________________               13We decided  that Cameron's  claim was  a challenge to  the          conditions of  confinement.  See  slip op. at  pp. 12-13.   Thus,                                       ___          whether SDPs have a constitutional right to  treatment remains an          open question in this circuit.  See slip op. at  11-12; Knight v.                                          ___                     ______          Mills, 836 F.2d 659, 668 & n.13 (1st Cir. 1987).          _____               14Miller's motion to intervene in Bruder sought intervention                                                 ______          as  a named class representative.  Its denial imported no finding          that  Miller  was not  adequately  represented  by the  plaintiff          class.                                          14          920 F.2d  525, 534 (8th Cir.  1990); Green v.  McKaskle, 788 F.2d                                               _____     ________          1116, 1123 (5th Cir. 1986).  Cf. Welch v. Spangler, 939 F.2d 570,                                       ___ _____    ________          572 (8th Cir.  1991).  Any  other rule would  tend to  discourage          governmental authorities  from entering  into consent decrees  in          public law litigation, encourage the splintering of civil  rights          claims on an individual  basis, and promote disrespect for  judi-          cial decrees  duly entered following careful  proactive review of          the often  complex mix of individual  and institutional consider-          ations involved in such litigation.                                          IV                                          IV                    Miller next  contends that the district  court erred in          holding  that he lacked standing to assert a constitutional right          of access to the courts on the part of certain other BTC patients          whom he assisted.  Before the district court, Miller alleged that          he had been appointed as the legal research assistant for minimum          privilege  and segregation patients on June  21, 1989 (five years          after he  commenced this action).   His responsibilities included          instructing such  patients on the procedure  for requesting legal          materials, assisting  their preparation of  legal pleadings,  and          obtaining  and returning books for  patients.  On  March 31, 1991          (approximately two weeks before trial), the Department of Correc-          tions  ("DOC")  imposed   certain  restrictions  which  allegedly          prevented  Miller from  performing his  duties as  legal research          assistant.  As of that date, Miller was prohibited from obtaining          books from  the shelves of the law library.   As a result, he was          no longer able to Shepardize cases  nor to procure cases cited in          texts.   In addition, Miller  had to request books  in advance so          that  some other person could retrieve them.  Miller alleged that                                          15          books  requested by him often  were not produced  when Miller and          the patients arrived at the library.  Other limitations allegedly          impinged on Miller's ability to communicate with the  patients he          was supposed  to assist.15   Miller  alleged that these  restric-          tions foreclosed  meaningful legal  research assistance  to other          patients  and that he was  the only legal  assistance afforded to          BTC.                    The district  court rejected the right  of access claim          because  Miller had not pleaded a third party claim and failed to          show that the patients he had  been assisting had no other avenue          of relief.   We affirm the dismissal of the third party claim; it          came too late.  Cf. Andrews v. Bechtel Power Corp., 780 F.2d 124,                          ___ _______    _______ _____ _____          139 (1st Cir.  1985) (upholding  denial of motion  to amend  com-          plaint after  commencement of  trial,  where complaint  had  been          filed seven years earlier).                    Affirmed; no costs.                    Affirmed; no costs.                    ________  __ _____                                        ____________________               15For example, Miller was required to sit at one table while          the patients he assisted  sat at separate tables in  the library.          Miller also claimed that often he was not notified by corrections          officers that his assistance had been requested by patients.                                          16
