In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2081

RICHARD THIELMAN,

Plaintiff-Appellant,

v.

JOSEPH LEEAN, LAURA FLOOD, JERRY BEDNAROWSKI,
DIANE FERGOT, MARGARET ALEXANDER, ANNA SALTER,
BYRAN BARTOW, JON LITSCHER, and JAMES DOYLE,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-580-C--Barbara B. Crabb, Chief Judge.

Argued November 2, 2001--Decided March 4, 2002



  Before POSNER, RIPPLE, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. A Wisconsin law,
part of what we will call Chapter 980,
defines a sexually violent person as one
"who has been convicted of a sexually
violent offense . . . and who is
dangerous because he or she suffers from
a mental disorder that makes it
substantially probable that the person
will engage in acts of sexual violence."
Wis. Stat. sec. 980.01(7). Among other
brushes with the criminal law, Richard
Thielman was convicted of second degree
sexual assault for an incident involving
a minor boy back in 1987. In 1989
Thielman pled guilty to another charge of
second degree sexual assault (stemming
from an incident preceding his
incarceration on the 1987 conviction),
again involving a minor boy, this time
his son. As Thielman’s criminal sentence
neared its completion, the State
initiated proceedings to have him
declared a sexually violent person under
Chapter 980. A court so adjudicated him
and he was "committed to the custody" of
the Department of Health and Family
Services "for control, care and treatment
until such time as [he] is no longer a
sexually violent person." Wis. Stat. sec.
980.06(1). The finding that he was a
sexually violent person was supported, as
it must be under the Wisconsin law, by
proof beyond a reasonable doubt.

  Thielman was assigned to the Wisconsin
Resource Center (WRC), a medium-security
facility housing persons committed under
Chapter 980 along with regular inmates,
most of whom have mental problems.
Thielman, who is now 63 years old,
suffers from numerous health problems.
His condition requires that he be
transported from the WRC (on an average
of three times a month, it would appear)
for outside medical treatment. The WRC
operates under a policy, developed by the
Department of Corrections, which
says"Inmates shall be placed in full and
double-locked restraints, chain-belt-type
waist restraints with attached handcuffs,
security Blackbox, and leg restraints."
Thielman challenged this policy and a
handful of others, but all his claims
were dismissed, on the State’s motion, by
Judge Barbara B. Crabb in the district
court. This appeal involves Thielman’s
claims under 42 U.S.C. sec. 1983 that
WRC’s transport policy violates his
rights to procedural due process and
equal protection of the laws under the
Fourteenth Amendment. He seeks
declaratory and injunctive relief. We
review the issues of law de novo.

  We note at the outset that since this
appeal was filed Thielman has been
transferred from the WRC to the Sand
Ridge Secure Treatment Center, which now
houses all Chapter 980 patients.
According to Thielman, the issues before
us are "unaffected by this change." The
State has not argued that Thielman’s
transfer moots this appeal, presumably
because Thielman is subject to a similar
transport policy or perhaps he could be
returned to the WRC. Accordingly, we
reach the merits.

  Thielman first claims that WRC’s
transport policy violates his right to
procedural due process because the State
has deprived him of a liberty interest
without an individualized determination
as to whether he poses a danger or escape
risk when he is taken from the facility.
The State concedes that no individualized
determination is made, so we look to the
predicate question of whether Thielman
has a liberty interest in not being
subjected to WRC’s restraint policy.
Shango v. Jurich, 681 F.2d 1091, 1097
(7th Cir. 1982).

  Liberty interests can arise from two
sources: the Federal Constitution or
state law. Id. Thielman claims a liberty
interest deriving from state law. In the
district court, Thielman cited sec.
51.61(1)(i)(1) of the Wisconsin Statutes,
a provision of the State Alcohol, Drug
Abuse, Developmental Disabilities and
Mental Health Act dealing with patients’
rights. That section provides mental
patients, including Chapter 980 patients,
with "a right to be free from physical
restraint and isolation except for
emergency situations or when isolation or
restraint is a part of a treatment
program." Wis. Stat. sec. 51.61(1)(i)(1).
Prior to August of last year, that
section also stated: "Patients who are
committed or transferred under s.
51.35(3) or 51.37 or under ch. 971 or 975
may be restrained for security reasons
during transport to or from the
facility." Id. Because this statutory
language fails to mention Chapter 980
patients, Thielman argues that it
requires that he be free from restraints
during transport. Reliance on that
argument took a hit when, while this
appeal was pending, the Wisconsin
Legislature amended sec. 51.61(1)(i)(1)
to include Chapter 980 patients in the
class of patients that could be
restrained during transport to and from
the facility. 2001 Wis. Act 16, sec.
1993r.

  The State argues that the amendment
moots Thielman’s claim that he has a
state-created liberty interest in not be
ing restrained. Wrong. Even if Thielman’s
claim was based on sec. 51.61(1)(i)(1)
alone, the amendment would not eliminate
the "controversy" at issue--whether WRC’s
policy violates Thielman’s right to
procedural due process. It would just
dictate how that controversy should be
resolved. In light of the amendment, it
is plain that Thielman no longer has a
state-created liberty interest in being
free from restraint during transport.

  But Thielman’s challenge is not based on
sec. 51.61(1)(i)(1) alone. He also points
to sec. 51.61(1)(e), which provides that
"[e]xcept in the case of a patient who is
admitted or transferred under s. 51.35(3)
or 51.37 or under ch. 971 or 975,"
patients shall have "the right to the
least restrictive conditions necessary to
achieve the purposes of admission,
commitment or protective placement, under
programs, services and resources that the
county board of supervisors is reasonably
able to provide . . . ." He also cites
former sec. 980.06(2)(b) of the Wisconsin
Statutes, which directs that the
Wisconsin Department of Health and Family
Services "shall arrange for control, care
and treatment of [a sexually violent]
person in the least restrictive manner
consistent with the requirements of the
person and in accordance with the court’s
commitment order." Section 980.06(2)(b)
was repealed in 1999, see 1999 Wis. Act
9, sec. 3223(j), but the repeal did not
apply to commitment orders entered prior
to October 29, 1999. Thielman was
committed in April 1996. He notes that
although the Wisconsin Legislature
amended sec. 51.61(1)(i)(1), it did not
touch sec. 980.06(2)(b) (presumably with
respect to those whose its repeal did not
affect) nor add Chapter 980 patients to
the class of patients exempted from
coverage under sec. 51.61(1)(e).
Therefore, he still claims a right to the
"least restrictive conditions of
confinement." He argues that WRC’s
restraint policy, which mandates leg
chains and a waist belt, deprives him of
this narrower liberty interest.

  Thielman’s argument raises questions
requiring a look at two Wisconsin
statutes, one of which has been repealed
and another which was recently amended.
In order to determine if sec. 51.61(1)(e)
or sec. 980.06(2)(b) provides Thielman
with a liberty interest, we would have to
analyze whether either section was
intended to apply to the transport of
patients, a contingency that appears to
be covered more directly in sec.
51.61(1)(i)(1). If so, we would then have
to consider whether and how the amendment
to sec. 51.61(1)(i)(1) did or did not
alter the meaning of the other sections.
We would navigate this thicket without
direct guidance from Wisconsin’s
appellate courts.

  We need not unravel these state
statutory mysteries, however, because any
inquiry would be much ado about nothing.
Federal precedent indicates that, even
granting Thielman the premise of his
argument that sec.sec. 51.61(1)(e) and
980.06(2)(b) give him a state-created
right to the least restrictive conditions
of confinement during transport, they do
not provide a liberty interest cognizable
under the Fourteenth Amendment. In Sandin
v. Conner, 515 U.S. 472 (1995), a
prisoner claimed that a prison regulation
gave him a liberty interest that was
infringed when he was sent to segregated
confinement for disciplinary reasons. The
prison regulation stated that with regard
to prison disciplinary proceedings, "[a]
finding of guilt shall be made where . .
. [t]he charge is supported by
substantial evidence." Id. at 477 n.3.
The petitioner argued that, in the
absence of a finding of substantial
evidence, he could not be subjected to
disciplinary confinement.

  The Court reviewed and reconsidered its
earlier cases on state-created liberty
interests, in particular Hewitt v. Helms,
459 U.S. 460 (1983). In Hewitt, the Court
had held that prison regulations could
give rise to liberty interests if the
language of the regulation contained
"mandatory" language that an incursion of
liberty would not occur absent
substantive predicates. Id. at 471-72.
Sandin refocused the inquiry on the
"nature" of the deprivation at issue. 515
U.S. at 483-84. The Court held that a
state could not create a liberty interest
unless the right provided freedom
fromrestraint that "imposes atypical and
significant hardship on the inmate in
relation to the ordinary incidents of
prison life." Id. at 484. Because the
Court would no longer find liberty
interests in the "negative implications"
of prison regulations, and the
confinement in Sandin did not differ
materially from the conditions of
administrative confinement at the same
prison (to which any inmate could be
subject), any deprivation the petitioner
suffered was not "atypical and
significant" in relation to the "ordinary
incidents" of his prison life. Id. at
484-86.

  Two concerns motivated the Court’s
holding. First, it was hesitant to find
liberty interests in "negative
implications" of prison regulations
because it did not want to discourage
states from writing such regulations,
which are designed to curb the discretion
of prison officials. Id. at 482.
Thisconcern is not implicated in
Thielman’s case because he does not claim
rights under a prison regulation. He
claims a right under a provision in the
State Alcohol, Drug Abuse, Developmental
Disabilities and Mental Health Act that
specifically deals with "Patients Rights"
and under a provision in Wisconsin’s
sexually violent person commitment
statute itself. Finding liberty interests
in these places does not undermine the
State’s intent of governing institution
officials; it effectuates the State’s
intent of providing patients with rights.

  But this difference is inconsequential.
Although we have on occasion wondered
what language can create liberty
interests after Sandin, see Barichello v.
McDonald, 98 F.3d 948, 954-55 (7th Cir.
1996), nothing in Sandin precludes states
from supplying language that confers
rights. The Supreme Court itself stated:
"[W]e recognize that States may under
certain circumstances create liberty
interests which are protected by the Due
Process Clause." Sandin, 515 U.S. at 483-
84. The more relevant question is what
"certain circumstances" must exist before
language conferring state rights can
translate into federal liberty
interests./1

  Which brings us to the Court’s second
concern. The approach that Sandin
rejected involved federal courts in the
"day-to-day management of prisons, often
squandering judicial resources with
little offsetting benefit to anyone." Id.
at 482. In Sandin, the Court sought
instead to "afford appropriate deference
and flexibility to state officials trying
to manage a volatile environment,"
especially with regard to "the ordinary
incidents of prison life." Id. at 482-83.
Accordingly, it articulated a minimum
standard for recognizing the kind of
deprivation that could trigger federal
procedural protection.

  Again, Thielman’s case differs slightly.
Just as Sandin dealt with prison
regulations, it also dealt with a prison
and a prisoner. Although the WRC, in
part, houses correctional inmates, it
cannot be termed a prison with regard to
Chapter 980 patients. The entire premise
of Wisconsin’s sexually violent person
commitment scheme is that a patient is
not confined as punishment for his
earlier criminal behavior. Otherwise, the
confinement scheme would run afoul of the
double jeopardy provision./2
Nonetheless, facilities dealing with
those who have been involuntarily
committed for sexual disorders are
"volatile" environments whose day-to-day
operations cannot be managed from on
high. Cf. Youngberg v. Romeo, 457 U.S.
307, 321-24 (1982) (extending
"professional judgment" standard to
substantive due process claim brought by
involuntarily committed mental patient
and noting that such a presumption was
"necessary to enable institutions of this
type--often, unfortunately, overcrowded
and understaffed--to continue to
function"). Moreover, even though
Thielman is not formally a prisoner, his
confinement has deprived him (legally) of
a substantial measure of his physical
liberty. Sandin teaches that any person
already confined may not nickel and dime
his way into a federal claim by citing
small, incremental deprivations of
physical freedom. Sandin’s reasoning
applies with equal force to persons
confined under Chapter 980./3 In order
to state a procedural due process claim
deriving from state law, Thielman must
identify a right to be free from
restraint that imposes atypical and
significant hardship in relation to the
ordinary incidents of his confinement.

  Although the deprivation at issue is to
be measured against the "ordinary
incidents" of his civil confinement, as
opposed to the conditions of criminal
incarceration, cf. Youngberg, 457 U.S. at
321-22 (noting that "[p]ersons who have
been involuntarily committed are entitled
to more considerate . . . conditions of
confinement than criminals whose
conditions of confinement are designed to
punish"), we need not consider the
details of Thielman’s daily existence
because his deprivation has been sharply
focused by the statutory rights at issue
and by Thielman’s own particular
complaints. Because of the amendment to
sec. 51.61(1) (i)(1), Thielman no longer
can claim that the statute provides him a
liberty interest in being free from
physical restraint during transport.
Rather, he is relegated to a liberty
interest in the "least restrictive
conditions of confinement," as (we will
assume) provided by sec.sec. 51.61(1)(e)
and 980.06(2)(b). In practical terms, we
were told during oral argument that
Thielman does not object to the use of
handcuffs but does not care one bit for
the use of a waist belt and leg chains.
This is the stuff of nickels and dimes.
The added restraints of a waist belt and
leg chains are not "atypical" and
"significant" hardships in relation to
Thielman’s confinement, which, without
even considering his overall environment,
involves the use of handcuffs during
transport. This "incremental" deprivation
is not one cognizable as a state-created
liberty interest in the wake of
Sandin./4

  Thielman next challenges WRC’s restraint
policy on equal protection grounds. In
his brief, Thielman mounted a Yick Wo
challenge--the discriminatory application
of a facially neutral statute--to WRC’s
restraint policy. See Yick Wo v. Hopkins,
118 U.S. 356 (1886). He claimed that sec.
51.61(1) (i)(1) provided both Chapter 51
patients and Chapter 980 patients with
the right to be free from restraint
during transport. (Chapter 51 of the
Wisconsin Statutes details the "standard"
method of committing someone
involuntarily to a mental hospital.)
Because WRC’s policy subjected Chapter
980 patients to full restraints, he
argued, it illegally discriminated
against them. The amendment to sec.
51.61(1)(i)(1) has changed this song’s
tune in two ways. First, it has codified
the distinction between Chapter 51 and
Chapter 980 patients with regard to the
right to be free from restraint during
transport. Accordingly, this portion of
Thielman’s Yick Wo argument is now just a
standard statutory challenge. Second,
because sec. 51.61(1)(e) purportedly
provides patients a right to the least
restrictive conditions of confinement,
Thielman’s Yick Wo challenge now focuses
on WRC’s denial of this narrower right.

  We deal first with Thielman’s statutory
argument. Judge Crabb in the district
court found that any classification
between Chapter 51 patients and Chapter
980 patients did not implicate a suspect
class and did not infringe a fundamental
right. Thielman has not challenged these
rulings. Accordingly, he is relegated to
the rational basis test. FCC v. Beach
Communications, Inc., 508 U.S. 307, 313
(1993). "A court will not disturb the law
as long as it is rationally related to a
legitimate government interest." Scariano
v. Justices of the Supreme Court of Ind.,
38 F.3d 920, 924 (7th Cir. 1994). The
State argues that the dangerousness of
Chapter 980 patients warrants their
restraint during transport. Although the
involuntary commitment of a person under
Chapter 51 can be accomplished by
showing, among other things, a
"substantial probability of physical
harm" to the patient or others, Chapter
980 patients have a previous conviction
(or acquittal based on their mental
condition) to evidence their
dangerousness. Moreover, as the State
points out, they are subject to
indefinite commitment, heightening their
desire to escape. Last, it is not
unreasonable for the State to believe
that a person with a mental disorder of a
sexual nature is qualitatively more
dangerous than another mental patient who
nonetheless threatens danger to himself
or others. Accordingly, Wisconsin has a
rational basis for drawing distinctions
between Chapter 980 and Chapter 51
patients with regard to the use of
restraints.

  Thielman’s reconfigured Yick Wo
challenge also fails. The question here,
assuming that sec. 51.61(1)(e) or sec.
980.06(2)(b) provides a right to the
least restrictive conditions of
confinement, is whether the WRC
disregarded the right in a discriminatory
fashion. This seems like a strange claim
in light of the fact that Thielman is
challenging WRC’s policy, yet there is no
evidence in the record that the WRC
houses Chapter 51 patients. In other
words, the WRC policy does not classify
at all between Chapter 51 and Chapter 980
patients./5 Even assuming it did,
however, for the reasons we have
discussed, the WRC could rationally
provide less restrictive restraints to
Chapter 51 patients than it provides to
Chapter 980 patients. Moreover, Mario
Canziani, security director at the WRC,
stated in his affidavit that the WRC has
referred for prosecution at least six
cases of battery by Chapter 980 patients
since 1998. Moreover, in 1998 one patient
escaped during transport and abducted a
child. The fact that the WRC may have
violated state law by treating Chapter
980 and Chapter 51 patients differently
adds nothing to Thielman’s federal equal
protection claim. Muckway v. Craft, 789
F.2d 517, 521-23 (7th Cir. 1986) (holding
that a state’s failure to enforce its own
law does not give rise to an equal
protection claim unless the state’s
action denies a federal right).

  For all these reasons, the district
court was correct to award the appellees
summary judgment on Thielman’s due
process and equal protection claims. This
is not to say, however, that a rigid
transportation restraint policy for all
Chapter 980 patients is to be applauded.
It might be better to treat older, more
infirm patients (recall, Thielman is in
his sixties and his medical condition--
apparently he has prostate cancer,
hypertension, heart disease, and some
degenerative disease of his spine and
right knee--is serious) differently. But
the challenged policies are not
unconstitutional, and so the judgment of
the district court is AFFIRMED. The
State’s motion to dismiss this appeal as
moot is DENIED.

FOOTNOTES

/1 The district court in this case determined that
Sandin did not apply because Thielman was not
claiming rights under prison regulations. It
cited Morgan v. Rabun, 128 F.3d 694, 699 (8th
Cir. 1997), which did not apply Sandin’s "atypi-
cal, significant deprivation" analysis to a
statutory right provided to an insanity acquitee.
As in Morgan, the district court applied Hewitt.
Judge Ripple’s dissent favors this approach, but
we fail to see its logic. Like Sandin, Hewitt
involved a prison inmate claiming rights under a
prison regulation. It is unclear why Hewitt
should govern the liberty interest analysis in
the mental health context when it is no longer
good law even on its own facts. Better, we think,
to consider the reasoning of its successor,
Sandin, which we conclude extends to the sort of
involuntary confinement at issue in this case.

  We feel this is the right approach because, for
one thing, it makes good sense. Someone is invol-
untarily committed, generally speaking, because
his mental illness makes him a safety risk to
himself or others. Accordingly, his commitment
entails some form of restraint, and that re-
straint is often significant. The Sandin rule
simply gives state officials some discretion in
determining how much restraint is necessary in a
given situation (here, traveling outside the
confining institution with a sexually violent per-
son) before federal procedural protection is
triggered. Even then, patients have recourse to
state courts when they want to enforce the letter
of a state’s patients’ rights law. For this
reason, Judge Ripple’s observation that our
approach will somehow frustrate the "will of the
people as expressed by their legislature" rings
hollow.

/2 Confinement occurs pursuant to Chapter 980 only
after a convicted sexual offender has served his
legislatively defined debt to society for his
original sexual crime (or crimes). Wis. Stat.
sec. 980.02(2)(ag). It is based on the State’s
interests in treating the sexually violent person
and in protecting the public from acts that a
person, deranged in a sexually violent way and
not yet rehabilitated, might commit. State v.
Carpenter, 541 N.W.2d 105, 112 (Wis. 1995).

/3 Thielman argues that Rapier v. Harris, 172 F.3d
999 (7th Cir. 1999), forecloses this holding. He
contends that in Rapier we did not apply Sandin
to a pretrial detainee and, by extension, should
not apply it to a Chapter 980 patient. Rapier,
however, involved a substantive due process claim
implicating Bell v. Wolfish, 441 U.S. 520 (1979);
it did not deal with the portion of Sandin
concerning state-created liberty interests. Nor
do we think that the dicta in Whitford v. Bog-
lino, 63 F.3d 527, 531 n.4 (7th Cir. 1995),
noting that Sandin "may be limited" to prison
regulations, forecloses our holding today.

/4 Whether the policy violates sec.sec. 51.61(1)(e)
and 980.06(2)(b) is, of course, a matter for the
Wisconsin court system to decide.

/5 Thielman has presented an administrative direc-
tive issued in 1998 by the Division of Care and
Treatment Facilities (DCTF), a part of the DHFS.
That directive provides, in accordance with sec.
51.61(1)(i)(1), that patients with "a recent
history of physical aggression may be restrained"
during transport and that the "least restrictive
restraint necessary" should be used. But the
directive apparently does not apply to Chapter
980 patients. Thus it could be said that the DHFS
has made the purportedly illegal classification.
But it is unclear whether any of the appellees
are at all connected with policy-making by the
DCTF. Given this state of the record, it is
difficult to determine when a classification be
tween Chapter 51 and Chapter 980 patients was
made and by whom.




  RIPPLE, Circuit Judge, dissenting. The Supreme
Court’s opinion in Sandin v. Conner, 515 U.S. 472
(1995), should not control the analysis in this
case. The rule announced in Sandin is limited by
its terms and rationale to the prison environ-
ment. By contrast, when a patient claims a liber-
ty interest under a patients’ rights statute,
Hewitt v. Helms, 459 U.S. 460, 469-72 (1983), and
not Sandin, sets out the appropriate analysis for
determining whether a liberty interest exists.
Accord Morgan v. Rabun, 128 F.3d 694, 699 (8th
Cir. 1997). Nevertheless, to the extent this
court now adopts the Sandin rule in the context
of a mental health facility, the provisions of
the patients’ rights statute should inform the
court’s analysis of the complained-of hardship in
relation to the "ordinary incidents" of life at
such a facility. The majority’s opinion in no way
accounts for the patients’ rights statute in this
regard, and, consequently, is analytically flawed
even on its own terms.

A.

  In Sandin, the Supreme Court renounced the
Hewitt test in the context of determining whether
prison regulations create liberty interests. See
Sandin, 515 U.S. at 481-83. This case does not
concern prison regulations, however, but a stat-
ute conferring rights on patients receiving
treatment for mental illness, developmental
disabilities, alcoholism or drug dependencies.
See Wis. Stat. sec. 51.61(1). The reasons the
Supreme Court gave in Sandin for abandoning the
Hewitt test to discern the liberty interests of
prisoners do not support the abandonment of the
Hewitt test in the context of discerning the
liberty interests of mental health patients
protected by a patients’ rights statute. In
Sandin, the Court observed that prison regula-
tions were "primarily designed to guide correc-
tional officials in the administration of a
prison," and "not designed to confer rights on
inmates . . . ." Sandin, 515 U.S. at 481-82. The
statute at issue here, by contrast, is intended
to confer rights on patients; it is entitled
"Patients rights [sic]." Wis. Stat. 51.61. The
Court in Sandin also was concerned that the
Hewitt approach "creates disincentives for States
to codify prison management procedures . . . ."
Sandin, 515 U.S. at 482. The application of the
Hewitt test to patients’ rights statutes would
not raise such a concern, because, in the context
of a patients’ rights statute, the state legisla-
tion was intended clearly to create rights.

  In Sandin, the Supreme Court was also concerned
that the Hewitt test "has led to the involvement
of federal courts in the day-to-day management of
prisons, often squandering judicial resources
with little offsetting benefit to anyone." Id. In
the context of a patients’ rights bill, however,
the people have created rights for patients.
Enforcing those rights may require courts to
scrutinize on occasion the practices of a mental
health facility. The burden of so doing, however,
is offset by the benefit of effectuating the will
of the people as expressed by their legislature
and by the benefit that patients receive in
having those rights enforced. It is hardly a
squandering of judicial resources to enforce
liberty interests that a state has created so
clearly.

  Application of the Hewitt test in the context
of patients’ rights does not raise the same
concerns as those raised by its application in
the prison environment. In this way, this case is
distinct from Rapier v. Harris, 172 F.3d 999 (7th
Cir. 1999), in which we rejected the Hewitt
methodology in distinguishing between punitive
and non-punitive action against pretrial de-
tainees because the case implicated the same
concerns as Sandin. See id. at 1005. Not only are
the concerns that motivated Sandin absent in the
context of a patients’ rights statute, but the
existence of a state statute reflecting the will
of the people to create rights for patients
militates in favor of a methodology that will
take that statute into account.

B.

  If the Sandin test is to be applied in this
context, however, the court nevertheless must
consider the provisions of the patients’ rights
statute in determining whether the hardship of
which the patient complains is "atypical" or
"significant" in relation to the "ordinary inci-
dents" of life in a mental health facility.
Simply put, the provisions of the patients’
rights statute should inform the court’s analysis
of whether the complained-of hardship is atypical
or significant when compared to the "ordinary
incidents" of life in the mental health facility.
In this way, the court’s analysis would demon-
strate a respectful consideration of the state
legislature’s determination of how the state’s
patients ought to be treated.
