December 9, 1993      [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 93-1787

                       ROGER D. ANYON,

                    Plaintiff, Appellant,

                              v.

                    LEONARD MACH, ET AL.,

                    Defendants, Appellee.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                      

                                        

                            Before

                     Breyer, Chief Judge,
                                        
            Torruella and Selya,  Circuit Judges. 
                                                

                                        

   Roger D. Anyon on brief pro se.
                 
   Scott  Harshbarger, Attorney General, and William L. Pardee,
                                                              
Assistant Attorney General, on brief for appellees, Leonard Mach,
Eileen Elias,  Robert Fine,  William O'Leary,  Elaine Hill,  Paul
Scopa and Rick Picket.  
   Jon  S, Hartmere,  Special  Assistant  Attorney General,  on
                   
brief for appellees, Gregory M.S. Canfield and Barbara Schwartz.

                                        

                                        

     Per Curiam.  Pro-se appellant, Roger Anyon, a patient at
               

the  Massachusetts Treatment  Center  for Sexually  Dangerous

Persons,  alleges  that  the   recently  revised  eligibility

requirements for reintegrating Treatment Center patients into

the  community   violate  his   rights   under  the   federal

constitution  and the  federal consent  decree  requiring the

remedying of conditions at the Treatment Center.   See, e.g.,
                                                           

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

Johnston,  928  F.2d  1206   (1st  Cir.  1991).     He  seeks
        

declaratory  and injunctive relief.1   Appellees are officers

and  employees of  the Commonwealth  of  Massachusetts.   The

district court  dismissed Anyon's  complaint  for failure  to

state a claim upon which relief can be granted.  We affirm.

                          Background

     Anyon is under  commitment to the Treatment Center for a

period  of one day  to life.   He is also  under a concurrent

criminal sentence of imprisonment for  life.  As a patient at

the  Treatment Center,  Anyon is  entitled  to mental  health

treatment   and  to  be  released  when  no  longer  sexually

dangerous.  Mass. Gen. L. ch. 123A   9.  Upon a determination

that  he  is  no  longer  sexually  dangerous,  he  would  be

discharged  from the  Treatment Center  and  returned to  the

Department of Corrections to serve out any unexpired criminal

sentence.  Id.  The Massachusetts Department of Mental Health
             

                    

1.  Anyon has dropped all claims seeking monetary relief.

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is required to establish a program at the Treatment Center to

provide "in a manner consistent with security considerations,

for the restrictive  integration of [a]  patient into a  non-

custodial  environment."   Mass. Gen.  L. ch. 123A,    8.   A

patient  will be  eligible  for this  program only  if, inter
                                                             

alia, "he  will not present  a danger to the  community under
    

the  controls provided by  the program."   Id.   Furthermore,
                                             

under  a partial  consent decree  first entered in  1975, the

Department  of  Mental Health  has agreed  to develop  a plan

providing   for  adequate  treatment   for  patients  at  the

Treatment Center.   Among  other things,  the Department  has

agreed to provide "for the day or other short-term release of

Treatment Center patients for  approved programs outside  the

Treatment Center where  such relief is deemed  appropriate by

the Department of  Mental Health."  See Langton,  928 F.2d at
                                               

1228.

     Anyon participated in the short-term release program for

several  years  prior to  August  1991.    At that  time,  in

response  to escapes by  two residents from  the program, the

Department  suspended   the  program  for  review  to  ensure

consistency with  both public  safety and  clinical concerns.

As a result  of the review, the Department  adopted new rules

for what is  now called the Transition Program.   Under these

revised  rules,  a resident,  like  Anyon,  who  is  under  a

criminal sentence and neither paroled to the Treatment Center

                             -3-

nor  eligible for parole, is ineligible to participate in the

program.  Anyon  asserts that these Transition  Program rules

deprive him  of his constitutional rights to  due process and

equal  protection,  and  violate  his  constitutional  rights

against ex  post  facto  legislation  and  double  jeopardy.2

Finally he  asserts that  the rules are  in violation  of the

federal consent decree.

                          Discussion

     Anyon has failed to allege sufficient facts to support a

claim  that either his substantive or his procedural right to

due process has  been violated.  The revision  of the program

was  not  so "outrageous"  as  to constitute  a  violation of

substantive due process.   See Amsden v. Moran  904 F.2d 748,
                                              

754  (1st Cir.  1990),  cert. denied,  498 U.S.  1041 (1991).
                                    

Moreover,  the state  is  not  prohibited  from  making  this

revision  by  the  fact  that  it  extinguished  any  liberty

interest Anyon may have had  under the prior rules for short-

term release.  See Tracy  v. Salamack, 572 F.2d 393,  396 (2d
                                     

Cir.   1978)  (prisoners  who  were  previously  entitled  to

participate in transition program have no entitlement to such

participation  which would  "have the  effect of  prohibiting

alteration   of  the   underlying  law   which  creates   the

entitlement").   Finally, since  Anyon concedes that  he does

                    

2.  Anyon  also asserts that the revised program violates the
eighth  amendment  prohibition  against  cruel  and   unusual
punishment.  This claim is without merit.

                             -4-

not meet the  eligibility requirements of the  revised rules,

he no longer has any state created liberty interest in short-

term  release  which  would implicate  the  federal  right to

procedural due process.   

     Likewise,  the  Transition  Program  rules  are  not  in

violation of the equal protection clause.  The distinction in

the  revised rules between civilly committed patients under a

criminal sentence and those who are not is rationally related

to the legitimate  state interest in  ensuring the safety  of

the community.  See Whiting v. Westerly, 942 F.2d 18, 23 (1st
                                       

Cir. 1991).

     Anyon's allegations  that the  Transition Program  rules

violate the double jeopardy and  ex post facto clauses of the

Constitution  fail because both these clauses pertain only to

punishments  inflicted   by  the  government.     See,  e.g.,
                                                           

Helvering  v. Mitchell, 303  U.S. 391, 398-99  (1938) (double
                      

jeopardy); Cummings  v. Missouri, 71 U.S. (4 Wall.) 277, 325-
                                

26 (1867) (ex post facto).   The revised rules for short-term

release,  however, are not punitive but rather related to the

state's concern for  community safety.  See  United States v.
                                                          

Halper, 490 U.S. 435, 448 (1989) (civil as well as a criminal
      

sanction constitutes punishment  only when it serves  aims of

retribution or deterrence).   As  regards Anyon's  allegation

that he has been "punished" by being deprived of his previous

right  to  participate  in  the  short-term  release program,

                             -5-

insofar as this is an allegation that he has been deprived of

the adequate treatment  required by the constitution  and the

federal  consent  decree,  we  think  this  concern  is  best

addressed through  an action  to enforce  the consent  decree

since  that  decree "'require[s]  the  provision of  adequate

treatment  for [Treatment Center] patients' at a level [even]

beyond  that   required  by  any   applicable  constitutional

minima."   Langton, 928 F.2d  at 1217.   Insofar as it  is an
                  

allegation that he has been deprived of treatment beyond that

required  by the  constitution and  the  consent decree,  the

revised  rules are  not  punitive but  the  "revocation of  a

privilege voluntarily granted."   See Helvering, 303  U.S. at
                                               

399.  As such, they do not implicate either the ex post facto

or the double jeopardy clause.3 

     Finally,  we find  no  error  in  the  district  court's

failure to consider Anyon's claims that his  rights under the

applicable  consent   decree   have  been   violated.     The

appropriate  vehicle for enforcement of the consent decree is

an action for  contempt brought before the  court responsible

for the decree.   See, e.g.,  DeGidio v. Pung, 920  F.2d 525,
                                             

534 (8th Cir.  1990); Green v. McKaskle, 788  F.2d 1116, 1123
                                       

(5th  Cir.  1986).   Allowing  the  decree to  be  challenged

through an individual  action for declaratory and  injunctive

                    

3.  We express  no  opinion  as to  whether  or  not  Anyon's
participation in the  release program is within  the scope of
treatment required by the constitution or the consent decree.

                             -6-

relief  "would tend  to  discourage governmental  authorities

from  entering  into   decrees  in  public  law   litigation,

encourage  the splintering  of  civil  rights  claims  on  an

individual basis, and promote disrespect for judicial decrees

duly  entered following careful proactive review of the often

complex mix  of individual  and institutional  considerations

involved in such litigation."  Miller v. Dept. of Correction,
                                                            

No. 91-2183, slip. op. at 15 (1st Cir., July 14, 1993).

     Affirmed.
             

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