
USCA1 Opinion

	




          December 28, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1607                                  DENNIS J. QUINTAL,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                          ____________________            Dennis J. Quintal, Sr., on brief pro se.            ______________________            Donald K.  Stern, United  States Attorney,  Charlene A.  Stawicki,            ________________                            _____________________        Assistant  United States  Attorney,  and Thomas  D. Ramsey,  Assistant                                                 _________________        Regional Counsel, Region I Department of Health and Human Services.                                 ____________________                                 ____________________                      Per Curiam.  Claimant is a convicted felon.  He has                      __________            been both  sentenced to  a  12 to  15  year prison  term  and            civilly  committed  as a  sexually  dangerous  person to  the            Massachusetts  Treatment Center  at M.C.I. Bridgewater  for a            period  of one  day to  life.   An ALJ  found claimant  to be            disabled, but suspended benefits  under 42 U.S.C.   402(x)(1)            because  of  claimant's  confinement.   The  Appeals  Council            upheld  the  ALJ's  determination.   Claimant  then  filed  a            complaint for  judicial review  in the district  court, which            the  court dismissed under 28 U.S.C.   1915(d) as frivolous.             While   we  question  whether  the  complaint  was  correctly            characterized  as   frivolous,  claimant  has  since  had  an            opportunity to  present any additional arguments  he may have            in his appellate brief.  We have considered all of claimant's            arguments.   They are all legally  meritless, and we conclude            that   benefits   were   properly   suspended.     In   these            circumstances, no purpose would be served by a remand, and we            affirm the  district  court's  judgment,  but  for  different            reasons.  Bristol Energy  Corporation v. New Hampshire Public                      ___________________________________________________            Utilities Commission, 13 F.3d 471, 478 (1st Cir. 1994) (court            ____________________            of appeals may affirm on any theory supported by the record).                                         -2-                                          I                      We start with the words of the relevant statute, 42            U.S.C.   402(x)(1)1:                      (x) Limitation on payments to prisoners                      (1)  Notwithstanding any  other provision                      of this subchapter,  no monthly  benefits                      shall be paid under this section or under                      section   423  of   this  title   to  any                      individual  for  any  month during  which                      such  individual is  confined in  a jail,                      prison,  or  other  penal institution  or                      correctional  facility,  pursuant to  his                      conviction    of    an   offense    which                      constituted  a  felony  under  applicable                      law, unless such  individual is  actively                      and  satisfactorily  participating  in  a                      rehabilitation  program  which  has  been                      specifically approved for such individual                      by a  court of law and,  as determined by                      the  Secretary, is expected  to result in                      such individual being  able to engage  in                      substantial gainful activity upon release                      and within a reasonable time.                      Claimant's  arguments, as  we understand  them, are            that (1)  he is  a patient in  a medical facility--and  not a            prisoner  in a "jail,  prison, or other  penal institution or            correctional  facility" within  the meaning of    402(x)(1)--            because the treatment center is under the jurisdiction of the            department   of  mental   health,  not   the  department   of            corrections;  (2)   he  qualifies  for  benefits   under  the            "participating  in a  rehabilitation program"  provision; and            (3) hehas been deniedequal protection. We addresseach inturn.                                            ____________________            1.  Section  402(x) was recently amended.  Pub. L. No. 387,              4, 108  Stat. 4071, ___  (1994).  Our  references are to  the            version in effect prior to the 1994 amendment.                                         -3-                                          II                      A.  Confinement  in a jail, prison, or  other penal            institution or correctional facility.                      Claimant was convicted in 1986  of rape of a  child            and/or  indecent  assault and  battery on  a  child.   He was            sentenced to 12 to 15 years' imprisonment.  Claimant was also            found  to be a sexually dangerous person (SDP), as defined in            Mass. G.  L. ch. 123A,    1 (1985), and  civilly committed to            the treatment center for a period of one day to  life,  Mass.            G. L.  ch. 123A,   5  (1985)2, where he will  remain until he            is no longer  sexually dangerous,  Mass. G. L.  ch. 123A,   9            (1989). The "primary  objective" of a civil commitment to the            treatment  center is "the  care, treatment and rehabilitation            of  the   sexually  dangerous  person."     Commissioner   of                                                        _________________            Correction v. McCabe, 410 Mass. 847, 852-53, 576 N.E. 2d 654,            __________    ______            657 (1991).   While in the treatment center,  claimant serves            his criminal  sentence.  Mass. G.  L. ch. 123A,    5, (1985).            Discharge from  the treatment center prior  to the expiration            of the 12  to 15  year criminal sentence  will not  terminate            that sentence, id., and will result in claimant's transfer to                           __            a regular prison.                      The treatment center  is under the  jurisdiction of            the department of  mental health,  Mass. G.L. ch.  123A,    2                                            ____________________            2.  Sections 3, 4, 5, 6, and 7 of ch. 123A have been repealed            prospectively,  Mass. Acts of 1990, ch. 150,    304, 104, but            the  repeal does not affect  claimant in any  way material to            the present opinion.                                         -4-            (1985),  although the commissioner of correction appoints the            custodial personnel for the treatment center.  Id.  Custodial                                                           __            personnel are "subject to the  control of the commissioner of            mental  health  with  respect  to  the  care,  treatment  and            rehabilitation of  persons in their custody,"  but are "under            the administrative,  operational and disciplinary  control of            the commissioner of correction."  Id.                                                __                      Claimant seems to contend, essentially,  that he is            a patient at a treatment center  and not a prisoner in a jail            and  that  consequently      402(x)(1)  does  not  allow  the            suspension of his  disability benefits so long as  he remains            at the treatment center.   We uphold the Secretary's contrary            conclusion.                        Under   402(x)(1), benefits must be denied not only            while  a convicted felon is incarcerated in a jail or prison,            but  also  while   he  is  "confined"  in  any  "other  penal            institution or correctional facility"  pursuant to his felony            conviction.  In the  circumstances of this case, we  think it            is fair to say that claimant is "confined" in a "correctional            facility" during  the period he serves  his criminal sentence            at the treatment center.    Claimant is certainly "confined,"            for he  is not free to depart.  And  his confinement is in an            institution, which,  under state law,  is considered to  be a            "correctional" facility.   See   Mass.  G. L. ch.  123A,    2                                       ___            (1985) (treatment  center must be located  "at a correctional                                         -5-            institution  approved  by the  commissioner  of correction");            Commonwealth  v. Geary, 31 Mass. App. Ct. 930, 579 N.E.2d 172            ______________________            (1991)  (concluding  that  a  defendant  who  had  been  both            criminally convicted and  civilly committed to  the treatment            center  was a "prisoner in any . . . correctional institution            of the  commonwealth" for  purposes of a  statute proscribing            attacks by  "prisoners" in  any "correctional  facility" upon            guards  and rejecting defendant's  claim that he  was no more            than a patient in a mental health facility).                        Treating claimant  as a prisoner  and the treatment            center  as a  correctional  facility is  consistent with  the            legislative history,  which reflected the view that convicted            felons incarcerated at public expense did not need benefits:                      The committee believes that the basic purposes                 of the  social security  program are not  served by                 the unrestricted payment of benefits to individuals                 who  are in prison .  . ..   The disability program                 exists  to provide a  continuing source  of monthly                 income to those whose  earnings are cut off because                 they have  suffered a severe disability.   The need                 for  this continuing  source of  income is  clearly                 absent in  the case of  an individual who  is being                 maintained at public expense  in prison.  The basis                 for his lack of  other income in such circumstances                 must be considered to  be marginally related to his                 impairment at best.            Sen.  Rep.  No.  96-987,  96th  Cong.,  2d  Sess.  8  (1980),            reprinted in 1980 U.S.C.C.A.N. 4787, 4794-95.  Claimant, who,            ____________            but for his civil commitment to the treatment center would be            in  a  regular  prison,   similarly  is  not  dependent  upon            disability benefits for subsistence.                                         -6-                      In sum, the Secretary's determination that claimant            was subject  to    402(x)(1) so  long as he  was serving  his            criminal sentence  in the  treatment center accords  with the            language  of  the statute  and  its  legislative history  and            therefore  must be upheld.   Davel v. Sullivan,  902 F.2d 559                                         _________________            (7th Cir. 1990) (upholding  suspension of disability benefits            to  convicted felon  serving two  concurrent commitments--one            civil and one criminal--in a mental health institute operated            by the state's department of health and social services).                      B.  Eligibility under rehabilitation provision.                      Under     402(x)(1),  an  incarcerated   felon  may            nevertheless receive disability benefits if he                       is     actively     and    satisfactorily                      participating in a rehabilitation program                      which has been specifically  approved for                      such individual by a court of law and, as                      determined by the Secretary,  is expected                      to  result in such  individual being able                      to engage in substantial gainful activity                      upon  release  and  within  a  reasonable                      time.                        Claimant  contends   he  is  engaging   in  various            rehabilitation programs  at the  treatment center, which  the            state court  approved  for him  when  it decided  to  civilly            commit him to the treatment center rather than have him serve            his  sentence  in  a  regular  prison.    See  Thibodeau   v.                                                      ___  ______________            Commonwealth, 366 Mass. 452, 454, 319 N.E.2d 712, 714 (1974),            ____________            Mass.  G.L.  ch.  123A,     5  (1985)  (sentencing judge  has            discretion whether to commit an SDP to the treatment center).                                         -7-            The  ALJ disagreed, noting that a treatment plan is not drawn            up until sometime after  commitment and therefore its details            are  not before  the  court  or  approved  by  the  court  at            commitment.   Consequently,  claimant's program had  not been            "specifically approved for [claimant] by a court of law," the            ALJ reasoned.                      We    need   not   decide   whether   claimant   is            participating  in  a  rehabilitation   program  "specifically            approved" for him by a "court of law"  because the ALJ denied            benefits for  an independent,  unassailable reason.   The ALJ            concluded      that the  program was not likely  to result in            claimant  being  able  to   engage  in  substantial   gainful            employment  "within  a reasonable  time,"  as  required by               402(x)(1):                      At present, the claimant is  no more than                      in the early stages of his rehabilitation                      program.      His   commitment  to   [the                      treatment  center], if  he fails  to meet                      the  standards  for   dropping  his   SDP                      status, could conceivably extend  for the                      remainder of his natural life -- possibly                      for another 40 years  or more.  Given the                      slow    progress    described   by    the                      [Restrictive Integration Review Board] in                      its  periodic  findings,  it   is  highly                      unlikely that he  will be released  prior                      to  the expiration  of his  sentence more                      than   7   years   hence.      Under  any                      circumstance,   it  is   unreasonable  to                      conclude  that  "release  and a  regained                                                ___                      ability for  substantial gainful activity                      will  be  achieved  within  a  reasonable                      time.                                         -8-                      Claimant has not  challenged the  ALJ's summary  of            the evidence.  Based on  that summary as well as a  review of            the  materials provided  to us,  we conclude  that the  ALJ's            factual determination that claimant is in the early stages of            rehabilitation  and  not  likely  to be  able  to  engage  in            substantial gainful  employment within  a reasonable  time is            amply supported.   Indeed,  claimant has not  articulated any            argument to  the  contrary.   Claimant  was not  entitled  to            payment   of   benefits   under   the   participation  in   a            rehabilitation program provision.                      C.  Equal Protection                      Claimant  asserts that  some people  who  have been            both  criminally  convicted  and  civilly  committed  to  the            treatment center  receive benefits while  others do not.   To            deny  claimant  benefits,  while  others in  the  exact  same            situation receive them, violates the equal protection clause,            he claims.                        Neither in the district  court nor in his appellate            brief has claimant provided  any clarifying details.   He has            not  identified any  inhabitant of  the treatment  center who            receives social security  benefits while concurrently serving            his criminal sentence.   It  may be that  some have  received            benefits after  their criminal  sentence has expired,  but if            that is  the substance of  claimant's complaint, there  is no            equal  protection violation.    Once a  criminal sentence  is                                         -9-            served, the person  is no  longer "confined  pursuant to  his            conviction,"   402(x)(1) no longer applies, and the person is            not similarly situated to claimant.                      We  have  considered all  of  claimant's arguments.            None warrant relief.                      Affirmed.                      ________                                         -10-
