Martel v. Fridovich

• Court: Court of Appeals for the First Circuit
• Decided: December 8, 1993
• Docket: 93-1798
• Status: Published

Opinion

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          December 8, 1993      [NOT FOR PUBLICATION]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.

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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

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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
                                           ___ ______     _____

            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.

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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,
                                              ___ _________     ________

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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).

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