           United States Court of Appeals
                        For the First Circuit

Nos. 13-1546
     13-1604
     13-1610

                   JEFFREY M. HEALEY; EDWARD GIVEN,

               Plaintiffs - Appellees/Cross-Appellants,

                           JOEL PENTLARGE,

                              Plaintiff,

                                  v.

           LUIS S. SPENCER, in his official capacity as
                    Commissioner of Correction;
              MASSACHUSETTS DEPARTMENT OF CORRECTION;
           MICHAEL CORSINI, in his official capacity as
    the Superintendent of the Massachusetts Treatment Center,

               Defendants - Appellants/Cross-Appellees,

                NATAYLIA PUSHKINA; DEBORAH O’DONNELL,

                             Defendants.



           APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Patti B. Saris, U.S. District Judge]



                                 Before
                 Torruella and Selya, Circuit Judges,
                      McAuliffe,* District Judge.

     Mary P. Murray, Supervising Counsel, with whom Nancy Ankers

     *
         Of the District of New Hampshire, sitting by designation.
White, Special Assistant Attorney General, and Brendan J. Frigault,
Counsel, Massachusetts Treatment Center, were on brief, for
appellants/cross-appellees.
     John A. Houlihan, for appellee Healey, and Harry L. Miles, for
appellee Given, with whom Hilary B. Dudley, Scott R. Magee, Kevin
Kam, Edwards Wildman Palmer LLP, Green, Miles, Lipton, LLP, Eric
Tennen, and Swomley & Tennen, LLP, were on brief, for
appellees/cross-appellants.


                         August 26, 2014
            McAULIFFE, District Judge.         Jeffrey Healey and Edward

Given reside in the Massachusetts Treatment Center in Bridgewater,

Massachusetts (the Treatment Center or Center).                   Each has been

civilly committed as a sexually dangerous person (SDP).                         In

separate suits, Healey and Given challenged the adequacy of sex

offender treatment provided by the Center as well as the conditions

of their confinement.      They sought equitable relief against the

Massachusetts      Department   of    Corrections,         as     well   as    the

Commissioner of Correction and the Superintendent of the Treatment

Center, in their official capacities (hereinafter referred to

collectively as DOC).      The cases were consolidated.

            Healey and Given alleged violations of the Constitution

and state statutory provisions.        Healey also alleged that the DOC

was not in compliance with the terms of its plan for the management

of the Treatment Center — a management plan the DOC developed

during the course of prior litigation.            Following a trial on the

merits,   the   district    court    entered      a    final     order   granting

plaintiffs declaratory and injunctive relief on some claims, but

entered judgment in favor of the defendants on the remaining

claims.     Both   sides   appeal    from   the       district    court’s     final

judgment.   We affirm in part and reverse in part.




                                     -3-
                             I.   Background

           Massachusetts law provides for the involuntary civil

commitment of persons found to be sexually dangerous.     Mass. Gen.

Laws ch. 123A, § 1 et seq.    Under Section 2 of the civil commitment

statute, sexually dangerous persons may be placed in the Treatment

Center, for “care, custody, treatment and rehabilitation.”       Id.

§ 2.   Operational control of the Center is vested in the DOC.   Id.

Each resident of the Center is permitted, by Section 9 of the

statute, to annually petition the Massachusetts Superior Court for

an examination and determination of whether he or she remains

sexually dangerous.   Id. § 9.

           An earlier version of the statute provided for shared

control of the Treatment Center by the DOC and the Massachusetts

Department of Mental Health (DMH).         In 1972, Treatment Center

residents brought two lawsuits seeking to rectify a broad array of

appalling conditions, as well as inadequacies in treatment, work

opportunities, and avocational and educational activities at the

Center.   See King v. Greenblatt (King I), 52 F.3d 1, 2 (1st Cir.

1995) and; Williams v. Lesiak, 822 F.2d 1223, 1224 (1st Cir. 1987).

That litigation gave rise to nearly three decades of judicial

oversight of the Treatment Center’s operations.          The layered

history of that long-running period of judicial supervision can be

found in this Court’s related decisions.         See, e.g., King v.

Greenblatt (King II), 149 F.3d 9, 11-12 (1st Cir. 1998) (recounting


                                   -4-
prior decisions); In re Pearson, 990 F.2d 653, 655 (1st Cir. 1993)

(same); Langton v. Johnston, 928 F.2d 1206 (1st Cir. 1991). During

that period, substantial improvements in both the conditions of

confinement and treatment protocols for Center residents were

realized, and, in 1999, the relevant equitable decrees were finally

terminated. See King v. Greenblatt (King III), 53 F. Supp. 2d 117,

139 (D. Mass. 1999).     The general background that follows is

necessarily a condensed version of that history, but one sufficient

to illuminate the current issues.

          In 1974, the district court entered two remedial consent

decrees in King and one in Williams, the parties having agreed that

the then prevailing conditions warranted judicial relief. See King

III, 53 F. Supp. 2d at 119.   (The cases were later consolidated.

Id.)   Conditions at the Treatment Center at that time “were

medieval — worse than those obtaining in the prison system,”

Langton, 928 F.2d at 1212, and included “cramped, poorly furnished

cells” without toilets or sinks; a polluted and unsafe water

supply; an “outmoded and sub-standard” sewerage system; obsolete

heating and ventilation equipment which caused some cells to go

unheated for days; a dearth of medical professionals; the absence

of a library, educational programs, gymnasium, outdoor recreation

area, work release or community access programs; and limited

vocational facilities.   King III, 53 F. Supp. 2d at 119.      The

consent decrees, which became known as the Original Decree and the


                               -5-
Supplemental       Decree,    “aimed    to     correct”     those     and     other

inadequacies.       Id.1

             The   Original   Decree    provided    that    “patients       at    the

Treatment Center should have the least restrictive conditions

necessary to achieve the purposes of commitment.”                    King II, 149

F.3d at 15 (internal quotation marks omitted).              That provision, we

noted in King II, was the Original Decree’s “substantive essence.”

Id.   The decree’s more specific provisions required DMH and DOC to

“take steps jointly to improve physical conditions, implement a

meaningful work program, and have a system of differing security

for   different     categories   of    patients    .    .   .   to   permit      less

restrictive conditions for those patients not requiring maximum

security.”     King III, 53 F. Supp. 2d at 120 (internal quotation

marks omitted).       Defendants were also required “to submit a plan

for therapeutic, educational, vocational, and avocational programs

at the Treatment Center,” as well as for the short-term release of

residents into the community.2               Id.   The Supplemental Decree

prohibited    the    placement   of    Treatment       Center   residents        into

solitary confinement as punishment or for disciplinary purposes,

and required all sequestration to meet “minimum standards of due



      1
        For simplicity’s sake we refer to the Original Decrees in
King III and Williams collectively as the Original Decree.
      2
        That requirement was contained in the Original Williams
Decree, but not in the Original King Decree. See King III, 53 F.
Supp. 2d at 120.

                                       -6-
process” and “human decency.”                       Id. (internal quotation marks

omitted).

                 The    decrees      considered       the    Center       a    mental     health

facility, with primary responsibility over residents and their

treatment         vested      in    the    Department       of    Mental       Health.         The

Department of Corrections, on the other hand, was responsible for

providing         a    secure      setting.        The     DOC    was   expected         to   work

collaboratively with DMH to carry out the decrees’ requirements.

Id. at 119-20.               The joint governance framework embodied in the

decrees mimicked the division of control described in the statute,

as it then existed.

                 For    nearly      two    decades       after    entry       of   the   consent

decrees, “[t]he stream of [enforcement] litigation occasionally

overflowed the district court,” Pearson, 990 F.2d at 655, much of

it occasioned by the conflicts inherent in DOC’s and DMH’s shared

governance of the Center.3                 Shared governance by statutory command

came       to   an     end   in    1994,    when     the    Massachusetts          legislature

transferred all operational control of the Treatment Center to the

DOC.       See 1993 Mass. Acts ch. 489.                  The Commonwealth then moved,

under Fed. R. Civ. P. 60(b)(5), to modify the consent decrees to

reflect         that    statutorily-directed             change    in   governance.            The



       3
        The Commonwealth abolished new civil commitments in 1990,
but reinstated the practice nine years later.       The King III
litigation (during that interim period) addressed conditions
relative to persons civilly committed under the old law.

                                              -7-
district court at first denied the motion to modify, “finding that

DOC had not presented the Court with any information demonstrating

its ability to provide treatment in compliance with the consent

decrees.”     King III, 53 F. Supp. 2d at 121.            The court “invited DOC

to provide specific details in the form of a plan of how it

proposed to operate the facility.”                  Id. at 121-22.        DOC, in

response, developed and proffered a detailed management plan and,

subsequently, an amended management plan (Plan).

             Finding   that     the    proffered    Plan    met   the   “goals    of

treatment and security and protection of residents’ rights,” the

district court modified the outstanding decrees to reflect DOC’s

sole responsibility for the Treatment Center’s operation.                  Id. at

122.    The Original Decree’s provisions governing the allocation of

state agency responsibility were modified, and the Supplemental

Decree’s “general proscription of disciplinary and punishment

procedures” was stricken, with solitary confinement “link[ed] . . .

to     the   offense   underlying       the    original     commitment    of     the

individual.”       King   II,    149    F.3d   at   19.     The   Commonwealth’s

alternative request — for outright vacation of the decrees — was

denied, but without prejudice to its renewing that request after

one year.     King III, 53 F. Supp. 2d at 122.

             In several related appeals from the district court’s

modification orders, this Court determined that the modifications

passed muster under Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S.


                                        -8-
367 (1992).       See King II, 149 F.3d at 19, 22.                          Rufo requires

institutional consent decree modifications to be grounded on a

“‘significant change’ in either factual conditions or in law” and

“‘suitably tailored to the changed circumstance.’” King I, 52 F.3d

at 4 (quoting Rufo, 502 U.S. at 383).                       We held that the state

statutory   amendment         constituted         a   significant         change     in    law

impacting the Original Decree’s terms regarding the division of

control    between   DMH       and    DOC,    id.      at    6,     and      that    factual

circumstances had changed sufficiently to warrant modification of

the Supplemental Decree’s “general proscription of disciplinary and

punishment procedures.”            King II, 149 F.3d at 19, 22.

            Addressing        Rufo’s    second         prong,     we        anticipatorily

scrutinized the DOC’s Plan, id. at 15, and determined, based on

that review, that the change in Treatment Center governance did not

“appear likely to undermine the Original Decree or to violate the

Constitution.”          Id.    at    19.          Importantly,       in      making       that

determination,     we    emphasized         that      the    Plan      itself       did    not

constitute a modification of the Original Decree, but represented,

instead,    the   “ways       in    which    DOC      aspire[d]        to    fulfill       the

requirements of the Original Decree.”                    Id. at 15.           Just as the

“policies and practices that [had] been relied on in the past by

DMH” constituted that agency’s response to its obligation under the

decree “to achieve effective treatment under the least restrictive

conditions,” the Plan represented the DOC’s own proposed means of


                                            -9-
achieving the same goal.     Id.    We also held, upon review of the

Plan’s   provisions   regarding    “clinical   treatment   programs   and

procedural safeguards,” and its specifications for a disciplinary

system, that the modifications to the Supplemental Decree were

suitably tailored to the changed circumstances.       Id. at 22.

           Within a year of this Court’s decision in King II, the

Commonwealth again filed a motion to vacate or, in the alternative,

to terminate the consent decrees.     King III, 53 F. Supp. 2d at 123.

After full discovery and a hearing, the district court granted the

motion to terminate the decrees and closed the King III and

Williams cases.   Id. at 139.

           In a thorough decision, the district court (Mazzone, J.)

correctly identified and applied the relevant legal standards, as

described in Bd. of Educ. v. Dowell, 498 U.S. 237 (1991).             And,

after considering a voluminous record that included testimony of

Treatment Center professionals and residents, Plan provisions, and

the DOC’s record of implementing those provisions, the court found

that “the underlying conditions that existed when the decrees were

entered have been remedied and that the Commonwealth has complied

with the decrees in good faith since they were entered.” King III,

53 F. Supp. 2d at 136.      “The evidence,” the court determined,

“clearly shows that the consent decrees have served the purpose of

correcting those conditions and are no longer necessary to maintain

those improvements.”    Id. at 125.   Judge Mazzone further concluded


                                   -10-
that “there is little or no likelihood that the Treatment Center

will revert to an earlier time, nor that the constitutional

violations will be repeated when the decree is lifted.”           Id. at

136.   Satisfied that the preconditions to decree termination were

met, Judge Mazzone terminated the decrees.         Id. at 139.

            In a preface to his findings, Judge Mazzone acknowledged

that “there may be issues arising out of the administration of the

Plan   in   the   future   if   DOC     becomes    indifferent   to    its

responsibilities both under the statute and the Plan to keep

residents separate and apart from inmates.”            Id. at 136.      He

suggested that, “[i]f ignored, the Plan will simply replace the

consent decrees as the basis of future complaints and the parties

will be destined for a future generation of litigation.”         Id.    He

found, nevertheless, that “the Commonwealth has sustained its

burden of demonstrating” that the preconditions to termination of

the decrees had been met and specifically concluded that “these

consent decrees should be terminated.”       Id.

            In an epilogue to his findings, Judge Mazzone offered the

following commentary which, for comprehensiveness and context, we

repeat in its entirety:

                    I believe the Management Plan is an
            enforceable operating document that recognizes
            the improvements made as a result of the
            consent    decrees   over   the    years   and
            acknowledges DOC's responsibilities to manage
            the Treatment Center accordingly.



                                 -11-
                 I   recognize   that   residents   will
          continue to voice their complaints about the
          circumstances of their existence at the
          Treatment Center.    This decision does not
          preclude them from challenging events on the
          basis of constitutional or other protected
          rights.   In the first place, residents may
          bring an action to enforce the terms of the
          existing Plan. Moreover, as the First Circuit
          stated in affirming a district court's
          decision to terminate another consent decree,
          plaintiffs remain “free to initiate a new
          round of proceedings designed to show that
          post-termination   conditions    actually   do
          violate their federally protected rights.”
          Rouse, 129 F.3d at 662. I remind the parties
          again today that any new allegations of
          unconstitutional conditions or treatment will
          be addressed in separate proceedings.

Id. at 137 (emphasis added).

          Two years after the consent decrees were terminated,

Healey brought this suit challenging both the conditions of his

confinement at the Treatment Center and the adequacy of his sexual

offender treatment.   In 2005, Healey’s case was consolidated with

a similar suit in which Given was later joined as plaintiff.4   Both

Healey and Given alleged violations of various constitutional

rights.   Healey also alleged that the DOC was in violation of

numerous provisions of the Plan. Arguing that the Plan constitutes

a settlement agreement, Healey alleged a breach of contract by the

DOC and, contending that the Plan amounts to an enforceable court


     4
       In 2005, Healey’s suit was consolidated with a case brought
in 2004 by then-resident Joel Pentlarge. Given was joined as a
plaintiff in Pentlarge’s suit in 2006.      Pentlarge dropped his
request for monetary damages and was dismissed from the suit upon
his release from the Treatment Center in 2006.

                               -12-
order, he alleged that Plan violations can be remedied in the

context of contempt proceedings.         Both Healey and Given sought

permanent injunctive relief on their own behalf; no class was

certified.

             The district court (Gertner, J.) determined that the Plan

was not properly construed as an enforceable settlement agreement.

But, relying on Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 380-81 (1994), it held that the Plan was enforceable as a

court order.      Under Kokkonen, a federal court retains subject

matter jurisdiction to enforce a settlement agreement if the

dismissal order incorporates the terms of the agreement or if the

court retains jurisdiction to enforce it.          Id. at 381.    The

district court determined that Judge Mazzone had “effectively

incorporated the Plan into [his] order allowing the termination of

the consent decrees,” such that the Plan acquired the character of

a court order over which the court retained continuing jurisdiction

to enforce.      Central to the district court’s reasoning was its

apparent conclusion that Judge Mazzone’s termination of the consent

decrees was conditional on the Plan’s having attained the status of

an enforceable injunctive order.5



     5
       The district court’s reasoning is found in Magistrate Judge
Dein’s report and recommendation, which was adopted by Judge
Gertner. Chief Judge Saris later declined to revisit the issue,
reasoning that Judge Gertner’s earlier resolution was controlling,
as “law of the case.” Healey v. Murphy, Nos. 01-11099, 04-30177,
2013 WL 1336786, at *14 (D. Mass. Mar. 29, 2013).

                                  -13-
            After   additional    dispositive   rulings,   Judge   Gertner

presided over a ten-day bench trial on the remaining claims, which

included Healey and Given’s claims that the DOC’s failure to

provide adequate treatment violated their Fourteenth Amendment

substantive due process rights; claims for violations of several

other constitutional provisions; and Healey’s claim that the DOC

was in violation of numerous Plan requirements.        While post-trial

mediation proceedings were being conducted, Judge Gertner retired.

The case was reassigned to Chief Judge Saris who presided over a

second, shorter, trial.      See Fed. R. Civ. P. 63 (describing the

procedure when one judge replaces another before the completion of

a trial).     After the second trial, Chief Judge Saris issued a

Memorandum and Order and Final Judgment and Order.

            The district court entered judgment for the DOC on most

of Healey’s claims, but ruled that the DOC violated some of its

obligations under the Plan, as well as Healey’s substantive due

process rights, by failing to provide adequate pharmacological

evaluation and treatment.        Healey, 2013 WL 1336786, at *19.      The

district court further held that the DOC violated both Plan and

state statutory requirements (but not Healey’s due process rights)

by failing to provide a functioning Community Access Program (CAP).

See id. at *28.     The district court found in favor of Given only on

his claim that the DOC violated his substantive due process rights




                                    -14-
by failing to provide adequate pharmacological evaluation and

treatment.    See id. at *19.

             The district court ordered the DOC to “have Healey and

Given evaluated by a qualified psychiatrist and, if appropriate,

provide them pharmacological treatment.” Id. at *47. The district

court declined to afford injunctive relief to Healey with respect

to his CAP claim, because his “persistent behavioral problems”

rendered him ineligible for the program.    Id. at *46.   The court,

did, however, enter a broad injunction requiring the DOC to “meet

the requirements of the Amended Management Plan in all material

respects.”    Id. at *47.

             The DOC appeals the declaratory judgment in favor of

Healey on his claim that it violated its obligations under the Plan

and failed to provide adequate pharmacological evaluation and

treatment. The DOC also challenges the district court’s injunction

to the extent it recognizes the Plan as an enforceable court order,

and requires compliance with its provisions.   For his part, Healey

also appeals from the injunction compelling DOC’s compliance with

the Plan, arguing that the district court should have required

more, and erred in not finding additional Plan violations.   Healey

and Given both challenge the district court’s determinations that

the DOC, in several respects, did not violate their constitutional

rights, including its determination that the DOC’s failure to

provide a functioning Community Access Program does not violate


                                 -15-
their constitutional right to due process.                Neither side has

challenged the district court's determination that the Constitution

requires   the    defendants     to    offer    the    plaintiffs   adequate

pharmacological evaluation and treatment.

                          II.   Standard of Review

           We    review   the   district     court’s   grant   of   permanent

injunctive relief for abuse of discretion. Asociacion de Educacion

Privada de P.R., Inc. v. Garcia-Padilla, 490 F.3d 1, 8 (1st Cir.

2007). Factual findings are reviewed for clear error and questions

of law de novo.     Id.    The district court’s rulings regarding the

constitutionality of the conditions of confinement at the Center

and the adequacy of its sex-offender treatment program present

mixed questions of law and fact which might not sit neatly at

either end of the review spectrum.              “An inquiry into whether

current [institutional] conditions constitute an ongoing violation

of a federal right ‘comprises a mixed question of fact and law, the

answer to which we review along a degree-of-deference continuum,

ranging from plenary review for law-dominated questions to clear-

error review for fact-dominated questions.’”           Morales Feliciano v.

Rullan, 378 F.3d 42, 52-53 (1st Cir. 2004) (quoting Inmates of

Suffolk Cnty. Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997)).

Here, we need not decide where, precisely, on the continuum our

review of the district court’s constitutional determinations should

fall for, “even under the more appellant-friendly lens of de novo


                                      -16-
review,” Healey and Given’s “claim[s] of error [are] unavailing.”

United States v. Gonzalez, 736 F.3d 40, 42 (1st Cir. 2013).

                         III.   Discussion

          To issue a permanent injunction, the district court must

find that: “(1) plaintiffs prevail on the merits; (2) plaintiffs

would suffer irreparable injury in the absence of injunctive

relief; (3) the harm to plaintiffs would outweigh the harm the

defendant would suffer from the imposition of an injunction; and

(4) the public interest would not be adversely affected by an

injunction.”   Garcia-Padilla, 490 F.3d at 8.

          Although the parties devote considerable attention to the

element of irreparable harm, this case can be resolved by answering

two basic questions that relate to the merits.    The first question

is whether the Plan is an enforceable court order.   That question,

which we answer in the negative, is necessary to Healey’s contempt

claim and central to both the DOC’s accountability for its failure

to follow Plan provisions and Healey’s claim that the district

court did not do enough to enforce the Plan.    The second question,

broadly speaking, is whether, as Healey and Given argue, the

district court erred in not finding additional constitutional

violations.




                                -17-
          A.    Plan Violations

          The   district   court’s   construction    of   the   Plan   as,

effectively, an enforceable court order, is in error.           An order

enforceable on pain of contempt, as the district court construed

the Plan to be, is an injunction.    See Int’l Longshoremen’s Ass’n,

Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 75

(1967) (“[A]n equitable decree compelling obedience under the

threat of contempt . . . [is] an ‘order granting an injunction.’”)

(quoting Fed. R. Civ. P. 65(d)).         The Plan, however, was clearly

not offered as a proposed decree meant to be substituted for the

existing consent decrees that were being terminated.        Indeed, the

Plan was never entered as an order, and certainly not an order that

was consistent with the requirements of Fed. R. Civ. P. 65(d).6

Moreover, Judge Mazzone did not, either expressly or impliedly,

condition termination of the existing consent decrees on the Plan’s

status as an enforceable injunction, as plaintiffs contend.




     6
        Rule 65(d) governs the “[c]ontents and [s]cope of [e]very
[i]njunction,” clearly providing that “[e]very order granting an
injunction . . . must . . . state its terms specifically . . . and
. . . describe in reasonable detail — and not by referring to the
complaint or other document — the act or acts sought to be
restrained or required.”       Fed. R. Civ. P. 65(d).         These
requirements “are not ‘mere[ly] technical’ but are ‘designed to
prevent uncertainty and confusion . . . and to avoid’ basing a
‘contempt citation on a decree too vague to be understood.’” NBA
Props., Inc. v. Gold, 895 F.2d 30, 32 (1st Cir. 1990) (quoting
Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam)).
Accordingly, “[t]o be enforceable in contempt, an injunctive decree
must satisfy” Rule 65(d)’s “specificity requirements.” Burke v.
Guiney, 700 F.2d 767, 769 (1st Cir. 1983).

                                  -18-
               In his final decision, Judge Mazzone commented pointedly

and forcefully about his hope for, and expectations of, the Plan.

His comments, upon which Given and Healey heavily rely, that “I

believe the Plan is an enforceable operating document” and that

“[i]n the first place, residents may bring an action to enforce the

terms of the existing plan,” are at best ambiguous in context. But

even       broadly   construed,   these   passing   comments      simply   cannot

provide the necessary positive command of an order “compelling

obedience under the threat of contempt,” particularly when they

were made in the course and context of terminating consent decrees

that mandated essentially identical legal obligations.                       Int’l

Longshoreman’s Ass’n, 389 U.S. at 75.7

               The critical point, however, is that Judge Mazzone did

precisely what he intended to do — we perceive no misstep on his

part.         The    highly   respected   judge     was   fully    capable     and

experienced; he knew how to issue an injunction and how to make it

stick.       Viewing his decision in the full context of this decades-

old litigation, it is plain to us that Judge Mazzone dissolved the

existing consent decrees, while simultaneously exhorting the DOC

not to regress, to continue to implement the Plan as the right

thing to do, and to recognize that failure to maintain the then-



       7
       The comment is best understood as a general prediction, to
the effect that should the Commonwealth revert to prior
unacceptable practices, the Plan’s terms would likely serve as a
solid blueprint for future injunctive relief.

                                      -19-
acceptable conditions would surely result in yet additional costly,

disruptive,       and   likely    successful         litigation.       As    judicial

oversight of the DOC’s operation of the Treatment Center came to an

end, the judge’s comments were meant to counsel, not dictate.

Acknowledging federalism’s demand that judicial oversight not

continue    in    perpetuity,        Judge    Mazzone    considered        the   record

evidence,    applied       the   proper      legal    standards,     and    correctly

concluded    that       the   time     had   arrived     to    terminate     judicial

supervision. King III, 53 F. Supp. 2d at 124-25, 136. Terminating

the decrees, he remarked, removed from the DOC’s operations “a

constant reminder of the federal court’s presence.”                    Id. at 136.

            The Plan was important, of course.                      It supplied the

assurance of continuing constitutionally acceptable conditions

necessary to support the court’s termination of the decrees.

Because     the    unconstitutional          conditions       had   been    remedied,

assurances of future adequacy had been given and found credible,

and the consent decrees had outlived their usefulness, the judge’s

path to termination was well-marked.                  See Freeman v. Pitts, 503

U.S. 467, 489 (1992) (“We have said that the court’s end purpose

must be to remedy the violation and, in addition, to restore state

and local authorities to the control of a school system that is

operating in compliance with the Constitution.”)

            The     Plan      cannot    plausibly       be    characterized      as   a

replacement consent decree.            A consent decree is both a settlement


                                         -20-
and an injunction. Aronov v. Napolitano, 562 F.3d 84, 91 (1st Cir.

2009).   For the reasons given, the Plan is not an enforceable

injunction. In any event, Judge Mazzone’s future-looking reference

to the Plan “replac[ing] the consent decrees” can hardly be thought

to mean that the consent decrees were being swapped-out for the

Plan, as an injunction.   The issue for decision was whether court

supervision, through enforcement of the consent decrees, should be

terminated.   Terminating the consent orders only to simultaneously

replace them with virtually coextensive Plan provisions, as an

injunctive order, would have merely maintained the status quo.

Judge Mazzone of course did not intend to continue judicial

supervision of the Center.

          The Supreme Court also has cautioned that a district

court must be explicit if it wishes to retain jurisdiction to

enforce the terms of a settlement agreement by, for example,

incorporating the terms of the settlement agreement into its final

order. See Kokkonen, 511 U.S. at 381. Judge Mazzone's order, read

in toto, does not by any stretch of the imagination explicitly

retain continuing jurisdiction over the matter.   In point of fact,

it gives the opposite impression.      By the same token, the order

does not incorporate the terms of the Plan.

          All of this is not to say that Judge Mazzone’s comments

about the Plan’s role as an operating document served no purpose.

The end of judicial oversight in institutional reform cases often


                                -21-
brings with it appropriate judicial warnings cautioning defendants

to avoid future repetition of past violations. It seems to us that

Judge Mazzone’s comments fell comfortably within that commendable

tradition.   See, e.g., People Who Care v. Rockford Bd. of Educ.

Sch. Dist. 205, 246 F.3d 1073, 1078 (7th Cir. 2001) (Posner, J.)

(“It should go without saying that if the board takes advantage of

its new freedom from federal judicial control to discriminate

against minority students in violation of federal law, it will

expose itself to a new and draconian round of litigation. We trust

that $238 million later, it has learned its lesson.”); Tasby v.

Moses, 265 F. Supp. 2d 757, 781 (N.D. Tex. 2003) (“[T]he [School]

District must adhere to the Covenants and Commitments adopted by

the Board and relied on by the Court in reaching its decision

today.”); Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch.

Dist., 237 F. Supp. 2d 988, 1089 (E.D. Ark. 2002) (“As a final

caveat, I want to caution the Board that it must be careful in how

it uses its newly restored wings.   Just as Icarus could not resist

the temptation to fly too close to the sun, causing his waxen wings

to melt, the Board must keep the Constitution in sight at all times

in making future decisions regarding the operation of the Little

Rock school system.   Otherwise, LRSD will find itself embroiled in

another round of costly litigation, with the possibility of still

more court supervision and monitoring.   I do not want this, and I

assume LRSD does not.”), aff’d 359 F.3d 957 (8th Cir. 2004).


                                -22-
            Healey argues, in the alternative, that even if the Plan

is not the equivalent of an enforceable order, still, the DOC

should be judicially estopped from denying its enforceability.                 He

says that the position the DOC currently takes — that it is not

judicially bound by the Plan — is inconsistent with litigation

positions   it    has   taken    in   the    past.     The    argument   is   not

persuasive.

            “‘[T]he doctrine of judicial estoppel prevents a litigant

from pressing a claim that is inconsistent with a position taken by

that litigant either in a prior legal proceeding or in an earlier

phase of the same legal proceeding.’”           Alt. Sys. Concepts, Inc. v.

Synopsys, Inc., 374 F.3d 23, 32-33 (1st Cir. 2004) (quoting

InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003)).                   The

doctrine is “judge-made” and is “designed to protect the integrity

of the judicial system.”         Perry v. Blum, 629 F.3d 1, 10 (1st Cir.

2010) (citing New Hampshire v. Maine, 532 U.S. 742, 749 (2001)).

Although its “contours . . . are hazy” and “its elements cannot be

reduced to a scientifically precise formula, . . . courts generally

require   the    presence   of    three     things   before   introducing     the

doctrine into a particular case.” Id. at 8-9. First, the “earlier

and later positions must be clearly inconsistent,” id. at 9, “that

is, mutually exclusive.”         Alternative Sys. Concepts, 374 F.3d at

33.   “Second, the party must have succeeded in persuading a court

to accept the earlier position.”            Perry, 629 F.3d at 9.        Lastly,


                                      -23-
“the party seeking to assert the inconsistent position must stand

to derive an unfair advantage if the new position is accepted by

the court.”   Id.

          Healey identifies two prior DOC positions that, he says,

directly contradict the DOC’s current position. He points first to

the fact that the DOC presented the Plan to the King III court, as

its then current and future strategy for running the Treatment

Center, in support of its motions to modify and terminate the

consent decrees.    Healey implies (but does not argue explicitly)

that, by doing so, the DOC represented to the court that it was

undertaking the obligation, under pain of contempt, to implement

the Plan, presumably indefinitely into the future.     Healey also

contends that, following termination of the decrees in 1999, the

DOC repeatedly put forth arguments, including in this case, that

hinge on Treatment Center residents being bound by the Plan.

Although the DOC purportedly took that position “repeatedly,”

Healey gives only one such example. In the district court, the DOC

moved to dismiss the constitutional claims.   It argued that those

claims are barred by res judicata on grounds that Judge Mazzone had

implicitly found that the Plan did not violate any state or federal

rights.

          The minimum prerequisites for judicial estoppel have not

been met here.      The DOC’s prior positions are not “directly

inconsistent” with the position it takes now.   As we have already


                                -24-
noted, at the consent decree modification stage in King III the

Plan served the evidentiary purpose of providing assurance to the

court that the shift to sole control of the Center by the DOC would

not undermine the decrees’ provisions.         At the decree termination

stage,   the    DOC,   like   most   defendants   seeking   release   from

institutional reform decrees, did not commit to follow its Plan

indefinitely under threat of contempt, but instead offered the Plan

as evidence of compliance with its outstanding legal obligations,

and as assurance that it was unlikely to revert to its old

unconstitutional ways once the decrees were lifted.

             The DOC’s res judicata argument in the court below is,

likewise, not directly contradictory to its position here.             The

argument that Treatment Center residents are bound by (purported)

judicial determinations regarding the Plan’s constitutionality is

not inconsistent with a subsequent position that the DOC is not

bound, on pain of contempt, to follow the Plan.        The two positions

relate to very different issues and are obviously not mutually

exclusive.

             For these reasons, we hold that the Plan is not, and was

not meant by Judge Mazzone to be, an enforceable court order.

Healey is not, therefore, entitled to declaratory or injunctive

relief based on Plan violations.            We, necessarily, reverse the

district court’s declaratory judgment in favor of Healey on his

claim that DOC is in contempt of court for failing to comply with


                                     -25-
provisions of the Plan.          We also necessarily reverse the district

court’s   affirmative          injunction      requiring    DOC     to   “meet   the

requirements      of    the    Amended   Management    Plan    in    all    material

respects.”     Healey, 2013 WL 1336786, at *47.

             B.   Constitutional Violations

             Healey and Given also challenge the district court’s

determination that conditions at the Center (other than inadequate

pharmacological treatment) do not violate their due process rights

under the Fourteenth Amendment.               We find no error.

             Civilly committed sexually dangerous persons are entitled

to conditions of confinement that comport with minimum Fourteenth

Amendment due process standards. Cote v. Murphy, 152 Fed. Appx. 6,

7 (1st Cir. 2005) (per curiam) (citing Seling v. Young, 531 U.S.

250, 265 (2001)).             Even if no single condition runs afoul of

constitutional protections, still, a combination of conditions may

violate a resident’s due process rights.                   See id. (noting that

double bunking is not per se unconstitutional, but that condition

could   violate        due    process    if    “combined   with     other    adverse

conditions”).     Disagreeable conditions can, however, be consistent

with the demands of due process, so long as they do not amount to

punishment.       That is, so long as they “‘bear some reasonable

relation to the purpose[s] for which persons are committed.’”                    Id.

(alterations in original) (quoting Seling, 531 U.S. at 265).                      As

noted earlier, under the Commonwealth’s statute, commitments to the


                                         -26-
Treatment Center are made for the purpose of providing for the

“care, custody, treatment and rehabilitation” of those found to be

sexually dangerous to the community. Mass. Gen. Laws ch. 123A § 2.

We have stressed that these statutory purposes encompass “not only

treatment and rehabilitation but public safety.”               Cote, 152 Fed.

App’x at 7; see also Miller v. Dukakis, 961 F.2d 7, 9 (1st Cir.

1992) (“[P]lacement at the Treatment Center [is] intended, at least

in part, to protect society.”)

             When     challenging        the   treatment       provided      as

constitutionally inadequate, civilly committed persons must show

that “the defendant failed to exercise a reasonable professional

judgment.”    Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011).

“States enjoy wide latitude in developing treatment regimens,”

Kansas v. Hendricks, 521 U.S. 346, 368 n.5 (1997), and “there can

be more than one reasonable judgment.”          Battista, 645 F.3d at 453

(citing Youngberg v. Romeo, 457 U.S. 307, 321 (1982)).

             The district court thoroughly reviewed the DOC’s sex

offender treatment program.          It examined the qualifications of

professionals involved in developing the program, the steps taken

by those professionals to keep the program current with evolving

practices in the field, and the DOC’s implementation of the

program.      It    found   that   the   treatment   program    is   based   on

“considerable research in the field,” Healey, 2013 WL 1336786, at

*12, and is at the “cutting edge of cognitive behavioral therapy


                                     -27-
for sex offenders,” id. at *30. While acknowledging some problems,

such as the DOC’s failure to collect important data and assess “the

efficacy of the . . . program,” the court nevertheless concluded

that the program “is in accordance with best professional judgment

and does not violate . . . the Constitution.”   Id.

          We have recognized that the DOC confronts “legitimate

security concerns,” Langton v. Johnston, 928 F.2d at 1216, in its

operation of the Treatment Center because, by definition under the

state statute, every resident of the Center has committed sexual

crimes and has been found by a court, beyond a reasonable doubt, to

suffer from a mental condition that renders him likely to reoffend.

See Mass. Gen. Laws ch. 123A § 1 (defining an SDP).   We have also

recognized that the interest in safety within the Treatment Center

itself may be critical to the delivery of adequate treatment.   See

Langton, 928 F.2d at 1220 n.17 (“[A]n unsafe environment would be

one in which the ability to deliver effective therapeutic services

would be drastically reduced.”).      A court inquiring into the

conditions under which sexually dangerous persons are confined must

“accord[] wide-ranging deference” to the judgment of facility

administrators as to what is “needed to preserve internal order and

discipline and to maintain institutional security.”        Bell v.

Wolfish, 441 U.S. 520, 521 (1979) (prison context).

          The district court did find that there is no functioning

community access program at the Treatment Center in contravention


                               -28-
of applicable state law and the Plan.          But it also determined,

correctly, that such a program is not constitutionally required.

The district court pointed out that plaintiffs “submitted no expert

testimony or professional standards stating that civilly committed

sex offenders must have a community access program,” and that they

had not “explained why a meaningful treatment program using the

. . . model of therapy” employed at the Center, “combined with the

section 9 release process is not constitutionally sufficient.”

Healey, 2013 WL 1336786, at *28.

           Healey and Given do not challenge the district court’s

factual findings, but argue that it failed to consider conditions

at the Treatment Center in combination.        They point to conditions

which, they say, when considered as a whole, create an environment

that is not reasonably related to the purposes of commitment,

especially rehabilitation (i.e., the lack of a treatment program

“calculated to ready Residents for release into the community

within a reasonable time”; the absence of a meaningful community

access program; and a punitive level of security).

           In assessing prevailing conditions at the Treatment

Center,   the   district   court   applied   the   relevant   due   process

standards and accorded appropriate deference to administrators with

respect to safety issues.     After visiting the Treatment Center and

thoroughly reviewing the relevant evidence, the district judge

concluded that, with the exception of inadequate pharmacological


                                   -29-
treatment, conditions at the Center do not violate Healey or

Given’s substantive due process rights.

           The court reviewed aspects of the physical conditions of

confinement at the Center and found that, among other things, the

DOC’s   telephone    restrictions,      property     restrictions,        use   of

shackles   when     transporting       residents     outside       the    Center,

elimination of room visits, and system of privileges all address

legitimate security concerns.         It concluded, therefore, that those

conditions,    either    alone   or    in    combination,     do    not   violate

residents’ rights to due process.

           Having thoroughly reviewed the district court’s decision

and the pertinent record, we discern no error.              The district court

recognized and correctly applied the relevant legal standards, and

it expressly acknowledged that “[a]lthough . . . conditions may not

state a due process claim when considered individually, [they

could] when taken together.”          The court carefully considered all

the evidence, made extensive factual findings, and meticulously

applied the appropriate legal standards.            It is clear to us that

the district judge assessed the conditions both individually and in

combination.    The unchallenged factual findings fully support the

district   court’s      determination       that,   apart    from    inadequate

pharmacological treatment, conditions at the Treatment Center do

not offend Healey and Given’s substantive due process rights.




                                      -30-
                          IV.   Conclusion

          We affirm in part and reverse in part the district

court’s final judgment and order.      The declaratory judgment in

favor of Healey on his contempt claim (Count I), as well as

injunctive relief compelling the Commonwealth’s compliance with the

Plan’s provisions, are reversed. The district court's judgment for

the   plaintiffs   regarding    the    constitutionality   of   the

pharmacological evaluation and treatment provided by defendants was

not challenged on appeal and, thus, survives without regard to the

proceedings before us.   The district court’s judgment in favor of

defendants in all other respects is affirmed.    The parties shall

bear their own costs.




                                -31-
