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USCA1 Opinion
December 8, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1798
DAVID MARTEL,
Plaintiff, Appellant,
v.
MARK FRIDOVICH, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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David M. Martel on brief pro se.
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Scott Harshbarger, Attorney General, and Scott M. Davis,
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Assistant Attorney General, on Memorandum in Support of Motion
for Summary Affirmance for appellees.
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Per Curiam. Pro-se appellant, David Martel, a patient
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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
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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-
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1. Martel has dropped all claims seeking monetary relief.
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custodial environment." Mass. Gen. L. ch. 123A, 8. A
patient will be eligible for this program only if, inter
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alia, "he will not present a danger to the community under
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the controls provided by the program." Id. Furthermore,
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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,
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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
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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
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748, 754 (1st Cir. 1990), cert. denied, 498 U.S. 1041 (1991).
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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
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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
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2. Martel also alleges that the Transition Program rules
violate the eighth amendment prohibition against cruel and
unusual punishment. This claim is without merit.
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the government. See, e.g., Cummings v. Missouri, 71 U.S. (4
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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,
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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
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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,
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303 U.S. 391, 399 (1938).3 As such, they do not implicate
the ex post facto clause.4
Affirmed.
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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
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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,
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534 (8th Cir. 1990); Green v. McKaskle, 788 F.2d 1116, 1123
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(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,
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No. 91-2183, slip. op. at 15 (1st Cir., July 14, 1993).
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Document Info
Docket Number： 93-1798
Filed Date： 12/8/1993
Precedential Status： Precedential
Modified Date： 3/3/2016