
USCA1 Opinion

	




          December 8, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1798                                                DAVID MARTEL,                                Plaintiff, Appellant,                                          v.                               MARK FRIDOVICH, ET AL.,                                Defendants, Appellees.                                  __________________                     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.                                              ______________                                 ___________________               David M. Martel on brief pro se.               _______________               Scott Harshbarger,  Attorney General,  and  Scott M.  Davis,               _________________                           _______________          Assistant Attorney General,  on Memorandum  in Support of  Motion          for Summary Affirmance for appellees.                                  __________________                                  __________________                 Per Curiam.   Pro-se appellant, David Martel,  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.  He seeks  declaratory and injunctive  relief.1            Appellees are officers  and employees of the  Commonwealth of            Massachusetts.     The  district  court   dismissed  Martel's            complaint for failure to state  a claim upon which relief can            be granted.  We affirm.                                      Background                                      Background                 Martel 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  of 18-25  years.   As  a            patient at the Treatment Center, Martel 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                       __            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-                                            ____________________            1.  Martel has dropped all claims seeking monetary relief.                                         -2-            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 v. Johnston,                                                ___  _______    ________            928 F.2d 1206, 1228 (1st Cir. 1991).                   In 1991,  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 new rules, a  resident, like Martel, who is under            a  criminal sentence  and neither  paroled  to the  Treatment            Center  nor eligible for parole, is ineligible to participate            in  the program.   Martel  asserts that  these revised  rules            deprive  him of his constitutional rights  to due process and                                         -3-            equal  protection,  and   violate  his  constitutional  right            against ex post facto legislation.2                                        Discussion                                      Discussion                 Martel  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).                                      ____  ______            Since Martel concedes  that he does not meet  the eligibility            requirements of the revised rules, he does not have any state            created  liberty interest  in short-term release  which would            implicate the federal right to procedural due process.                    Likewise, the revised 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).                 Martel's allegation  that the  Transition Program  rules            violate the  ex post facto  clause of the  Constitution fails            because this clause pertains only to punishments inflicted by                                            ____________________            2.  Martel  also alleges  that the  Transition  Program rules            violate  the eighth amendment  prohibition against  cruel and            unusual punishment.  This claim is without merit.                                         -4-            the government.  See, e.g.,  Cummings v. Missouri, 71 U.S. (4                             ___  ___    ________    ________            Wall.) 277,  325-26 (1867).   The  Transition Program  rules,            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  Martel's allegation            that he is  being "punished" by being deprived  of a previous            right  to  participate  in  the short-term  release  program,            insofar as this is an allegation that he is being 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 a                       _______            allegation that he is being 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  v. Mitchell,                                              ___ _________     ________                                         -5-            303 U.S. 391, 399  (1938).3  As  such, they do not  implicate            the ex post facto clause.4                 Affirmed.                 ________                                            ____________________            3.  We  express no  opinion  as to  whether  or not  Martel's            participation in the release program  is within the scope  of            treatment required by the constitution or the consent decree.            4.  In his  brief on appeal,  and in a memorandum  filed with            the  district  court,  Martel  alleges  that  the  Transition            program rules violate both his constitutional right not to be            subject  to double jeopardy and the provisions of the federal            consent decree under which the Treatment Center is operating.            Neither claim was made in his original complaint.  Even if we            were to  consider  these issues  to  be properly  before  us,            neither  affects our judgment that the complaint was properly            dismissed.   The double jeopardy claim, like Martel's ex post            facto claim, fails  because the revised Transition  rules are            not punitive.   See, e.g., Helvering,  303 U.S. at 399.   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            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).                                         -6-
