July 14, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 91-2183
SHERMAN MILLER,
Plaintiff, Appellant,
v.
DEPARTMENT OF CORRECTION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Cyr and Boudin, Circuit Judges.
Sherman Miller on brief pro se.
Scott Harshbarger, Attorney General, and Timothy A. Mullen,
Assistant Attorney General, on brief for appellees.
Per Curiam. Pro se plaintiff Sherman Miller appeals Per Curiam.
from a district court judgment for the defendants in this 42
U.S.C. 1983 action. For the reasons discussed below, we
affirm.
I
Miller is sixty-five years old. For most of the past
fifteen years, he has been a resident of the Treatment Center for
Sexually Dangerous Persons located in Bridgewater, Massachusetts
(hereinafter: "Treatment Center" or "BTC"). Following a 1978
conviction for rape, Miller was committed to the BTC pursuant to
a Suffolk Superior Court order adjudicating him a Sexually
Dangerous Person ("SDP") pursuant to M.G.L. c. 123A, 6 (re-
pealed) and directing that he "be voluntarily committed to the
Treatment Center . . . ." (emphasis supplied). In 1984, Miller
commenced this civil rights action. The amended complaint sought
declaratory and injunctive relief and damages for alleged consti-
tutional deprivations attending his confinement at the BTC. All
named defendants are state officials formerly responsible for
operations at the BTC.1 Although the amended complaint asserted
seven claims, only two are implicated by this appeal. Miller's
first claim alleged that the defendants violated his constitu-
tional right of access to the courts by maintaining an inadequate
1The defendants are former Department of Corrections Commis- sioner Michael Fair, Charles Gaughan (former Superintendent of the Massachusetts Correctional Institution at Bridgewater), James Callahan (former Commissioner of the Department of Mental Health), Richard Boucher (former Administrator of the BTC) and Mildred Gil (law librarian at the BTC).
law library and restricting library access. The other surviving
claim alleged that the defendants violated Miller's constitution-
al right to rehabilitative treatment. Miller alleged that the
defendants failed to develop an individual treatment plan ("ITP")
for him although he believed such plans had been developed for
other BTC patients and that the denial of an ITP violated his
right to due process and equal protection under the Fourteenth
Amendment.2 He sought injunctive relief requiring defendants to
develop an ITP which would afford him a realistic opportunity to
improve his mental condition, and requiring defendants to afford
him adequate access to the BTC law library.
On December 10, 1985, the district court granted a
preliminary injunction on Miller's "access to the courts" claim.
The order required the defendants to obtain certain additional
volumes for the law library and to ensure that Miller receive
reasonable photocopying services. Miller's criminal sentence
expired on May 8, 1989. No significant judicial proceedings took
place thereafter until the case was called for trial in January
1991. Relying on the expiration of his criminal sentence, Miller
sought release from the BTC by instituting a state-court habeas
corpus proceeding. On March 20, 1991, the superior court ruled
that Miller had been involuntarily committed to the Treatment
Center and, therefore, was not entitled to release until such
time as his adjudication as a SDP was revoked under M.G.L. c.
2Miller alleged that the defendants discriminated against him because of his unique "voluntary" commitment status and that the BTC maintained that Miller's right to participate in its programs was inferior to that of involuntarily committed BTC patients.
123A, 9.3 Thus, but for his status as a SDP, Miller would be
a free man. Nevertheless, he has never submitted an administra-
tive request for release or reclassification.
Miller's 1983 action was called for trial in January
1991. Both sides sought a continuance; the BTC had lost its case
file and Miller required further discovery. The district judge
continued the trial to April but warned that belated dispositive
motions would not be allowed to delay the trial further. Four
days before the rescheduled trial, defendants filed a motion to
dismiss or for summary judgment, based on this court's March 22,
1991 decision in Langton v. Johnston, 928 F.2d 1206 (1st Cir.
1991). Langton resolved an appeal from a class action, Bruder v.
Johnston, brought on behalf of all patients civilly committed to
the BTC.4 The Langton plaintiffs sought to have the defendants
all of them state officials responsible for operations at the
BTC held in contempt of certain consent decrees requiring the
establishment of various therapeutic, educational, and vocational
programs at the BTC. See generally Williams v. Lesiak, 822 F.2d
1223 (1st Cir. 1987) (describing consent decrees). Like Miller,
the Langton plaintiffs had raised an inadequate treatment claim
that alleged, inter alia, that the defendants had failed to
3The superior court ruling was based on the statements made by the committing judge during the course of the SDP hearing, as well as Miller's own conduct. The Massachusetts Appeals Court affirmed. See Miller v. Tink, 33 Mass. App. Ct. 1103 (1992),
further rev. denied, 413 Mass. 1106 (1992).
4We refer to Bruder and Langton interchangeably. We note
that Miller's 1983 action and Bruder were pending before
different district judges at roughly the same time, although the Bruder suit was filed two years after Miller's suit and the
Miller case was not resolved until almost two years after Bruder
was decided. Miller unsuccessfully filed a motion to intervene as a class representative in Bruder. See also infra note 14.
provide treatment reasonably designed to bring about the pa-
tients' recovery. See 928 F.2d at 1212. Our decision in Langton
upheld the district court's ruling that the defendants were not
in contempt of the consent decrees but rather had achieved
substantial compliance with those decrees notwithstanding the
fact that the ITPs of many patients were not being fully imple-
mented. We also observed that the BTC had a "current and compre-
hensive law library." See id. at 1213, 1216, 1220-23. The
defendants contended that Langton barred Miller's claims under
the doctrine of res judicata or collateral estoppel. Miller
moved to strike defendants' dispositive motion.5
When the case was called for trial, defendants' motion
to dismiss/for summary judgment and Miller's motions to strike
and compel discovery remained pending. The district court
initially told Miller that he would not have to file a response
to defendants' motion and instructed defendants' counsel to
assert their legal arguments in the context of a motion for
directed verdict. Miller, however, was not prepared for trial.
He had not subpoenaed any witnesses, being uncertain as to how
the court would proceed on the pending motions.6 Loath to delay
the resolution of Miller's claims any longer, the district court
5Shortly before defendants filed their motion to dismiss/for summary judgment, Miller moved to compel discovery and for a judgment of contempt. He sought to compel Michael Stevens, the Chairman of the BTC's Reintegration Review Board ("RRB"), to complete his deposition and produce documents. Miller's motion to strike argued that defendants improperly moved for summary judgment before discovery was completed.
6Miller complained that he had been unable to complete the deposition of Michael Stevens, Chairman of the BTC's RRB. Miller hoped to elicit Stevens' admission that Miller's treatment was not being based on professional judgment under Youngberg v.
Romeo, 457 U.S. 307 (1982).
expressed a preference for proceeding to trial. But after
hearing defendants' arguments, the court expressed some uncer-
tainty as to whether the case would be tried or resolved on
defendants' motion.7 The court recessed to allow Miller to
prepare a subpoena for Stevens, as well as a witness list and a
proffer indicating how Miller's evidence might defeat defendants'
Langton/Bruder defense. After the recess, Miller submitted a
witness list identifying six witnesses on his "access to the
courts" claim and seven witnesses on his inadequate treatment
claim.8 He argued that Bruder did not bar these claims because
(1) Bruder was not decided on constitutional grounds; (2) Miller
had not been a party to Bruder, in part due to his alleged
voluntary commitment status; (3) many of the issues Miller sought
7The district court explained to Miller, "If you don't have a proffer of evidence that would establish if credited that there is a cause of action remaining in the face of the legal arguments the defendant is asserting, then whether we do it as a trial or
do it as a motion for a summary judgment, it's time to end the
case . . . ." (emphasis added).
8Miller's proffer indicated that he expected two members of the BTC's Reintegration Review Board Dr. Mark Sokol and Michael Stevens to identify the treatments recommended for Miller that had not been provided. Miller further indicated that he wished to question Dr. Albert Jurgela, Director of Clinical Services, to find out why various recommended treatments had not been provided. Miller complained that the BTC refused to give him clozapine a drug Miller had taken for six or seven years prior to his incarceration and which allegedly allowed him to function normally in society even though the BTC's RRB specif- ically recommended it. He implied that his only hope of release might rest on securing clozapine therapy. Miller wanted to call Dr. Daniel Kreigman and Dr. Martin Miller to inquire why the BTC was not giving him clozapine. He expressed the hope that another witness, Dr. Guy Seymour, would testify that Miller suffered from schizophrenia, thus justifying the use of clozapine. (continued) In support of his "access to the courts" claim, Miller sought to prove that certain restrictions on his movement within the law library violated the constitutional right of access to the courts of inmates he was assisting in his capacity as an appointed research assistant.
to raise concerning his treatment arose after Bruder was decided,
and (4) Bruder merely determined that the state was not required
to implement all treatments recommended in a particular SDP's
ITP, it did not decide what the state was required to provide to
a SDP, such as Miller, whose criminal sentence had expired.
Defendants reiterated their argument that Langton/Bruder barred
Miller's remaining claims.
The district court concluded that the case could be
resolved by affording Miller an opportunity to file affidavits
and memoranda in opposition to defendants' arguments. The court
adjourned the "trial" after one day, allowing Miller leave to
submit such filings. Thereafter, Miller filed a number of
submissions in support of his claims. With respect to his
inadequate treatment claim, Miller averred that he had been
adjudicated a SDP and committed to the BTC in 1979, that the
BTC's RRB had formulated an extensive treatment plan for him on
November 1, 1989, but that he had "not been afforded one of the
behavioral and pharmacological treatment modalities recommended
by the [RRB]." He reiterated his complaint that he had not been
treated with clozapine, notwithstanding the RRB's recommendation.
On June 11, 1991, the district court issued a memoran-
dum of decision denying relief on Miller's inadequate treatment
claim. The court ruled that it was not necessary to decide
whether Langton/Bruder barred the claim under the doctrines of
res judicata and collateral estoppel. The court ruled instead
that Langton/Bruder precluded relief under the doctrine of stare
decisis. Noting that Miller had based his inadequate treatment
claim largely on the fact that he had not been given clozapine as
recommended by the RRB, the court reasoned:
In light of the recognition by the courts in Bruder and Langton that patients were not
receiving all of the treatment recommended in their individual treatment plans, . . . pla- intiff has failed to demonstrate a genuine
issue of material fact on the claim of con-
stitutionally inadequate treatment . . . [and
the] defendants are entitled to judgment as a matter of law. (Emphasis supplied.)
The court awarded Miller partial relief on his "access
to the courts" claim,9 but held that he had not stated an ac-
tionable claim for denial of access to the courts on behalf of
his fellow patients because he failed to allege that those
patients had no avenue of access to the courts except through
Miller.
Miller filed a motion for partial reconsideration,
arguing that the district court erred in construing his inade-
quate treatment claim as similar to that raised by the plaintiffs
in Langton/Bruder. Relying on his May 13, 1991 affidavit, Miller
argued that, unlike the Langton plaintiffs, he was not complain-
ing that he had not received all the treatments that had been
recommended for him. Rather, Miller's complaint was that he had
not received any of the behavioral and pharmacological treatment
modalities that had been recommended for him by the RRB in 1989.
Miller argued that simply because the BTC was not able to imple-
ment all of the programs recommended in each patient's ITP did
not mean that the BTC had no obligation to implement some of the
9The court issued a judgment declaring that as of December 10, 1985, the BTC law library was constitutionally inadequate. Miller was awarded $500 for attorney fees incurred in enforcing the district court's December 10, 1985 preliminary injunction.
programs repeatedly recommended for him. Miller further averred
that his group therapist and another staff person were recently
"bumped," which would leave him without treatment.
The defendants filed an opposition which included an
affidavit from Dr. Jurgela and copies of the RRB's reports on
Miller's 11/1/89 and 7/25/90 status reviews.10 Dr. Jurgela
attested that Miller's therapist continued to provide group
therapy to Miller notwithstanding the fact that she had been
"bumped," and that Miller also received treatment in the form of
weekly "house meetings" led by another staff clinician. Dr.
Jurgela acknowledged, however, that the current RRB report recom-
mended that Miller receive individual therapy, personality
testing, general behavioral and plethysmographic assessments,
covert conditioning, relapse prevention, and anger and depression
management, but that Miller had not received any of these assess-
ments or treatments.11 He also acknowledged that a psychophar-
macological consultation had been recommended for Miller, presum-
ably a reference to the recommended clozapine therapy. The RRB
reports confirmed Miller's allegation that the RRB had recommend-
ed a trial use of clozapine in 1989 and that, as of July 1990, he
had received neither clozapine nor the other recommended services
noted immediately above. The 1989 RRB report concluded that
Miller remained a SDP whose prognosis was poor. The 1990 RRB
report noted that services might be lacking for Miller and if
10Under the consent decree, the RRB is required to evaluate each patient, on an annual basis, to determine the progress of therapy and the advisability of permitting the patient to reenter the community on a limited basis. See Langton, 928 F.2d at 1210.
11Dr. Jurgela noted that Department of Mental Health ("DMH") policy prohibited the use of plethysmography at any DMH facility.
that were the case, as opposed to Miller simply resisting servic-
es that had been offered, "such conditions should be corrected as
soon as possible." Miller responded to the defendants' opposi-
tion, arguing that defendants' evidence established that of the
ten treatment modalities that had been recommended by the RRB in
1989, he had received only one (group therapy).
The district court rejected Miller's contentions on the
ground that Miller had "not demonstrated a genuine issue of
material fact on the adequacy of treatment claim." The court
reiterated that "the Treatment Center is not obligated to imple-
ment the [ITP] drawn up by the [RRB] in all its details" and
found that Miller's claim that he had "not been afforded one of
the behavioral and pharmacological treatment modalities recom-
mended by the [RRB]" in 1989 was "a factual assertion not clearly
supported by the ambiguous language in" Miller's affidavit
because Miller had failed to identify a treatment other than
clozapine that he had not received. The court further found that
Miller's claim that he was no longer receiving any treatment
since certain staff members had been "bump[ed]" merely assert-
ed "sketchy facts and unsupported conclusions" which failed to
comply with Fed. R. Civ. P. 56(e). The court denied Miller's
motion for partial reconsideration and his amended motion for
partial reconsideration.
Miller then filed other postjudgment motions: to
supplement the pleadings, reopen the case, and amend the pleadi-
ngs to conform to the facts set forth in Miller's September 23,
1991 affidavit ("Supplementary Affidavit"). In the first motion,
Miller argued that further reconsideration was warranted because
the court had failed to apprise him of the requirements of Rule
56(e). Miller's Supplementary Affidavit spelled out each recom-
mended treatment with which he had not been provided since
1986.12 The court declined further reconsideration, asserting
that its June 11, 1991 decision was not based on defendants'
motion for summary judgment, therefore Miller's alleged unaware-
ness of the requirements of Rule 56(e) was irrelevant. The court
further found that Miller's Supplementary Affidavit disclosed no
set of facts that might entitle him to relief and that amendment
of the pleadings following "trial" was not in the interests of
justice. The court held that Miller's Supplementary Affidavit
was not part of the record. Miller's motions were denied and
this appeal followed.
II
The district court orders disposing of Miller's postju-
dgment motions are reviewable for "abuse of discretion." See
Desenne v. Jamestown Boat Yard, 968 F.2d 1388, 1392 (1st Cir.
1992)(deci-sion on Rule 59(e) motion for reconsideration reviewed
for abuse of discretion); Rodriguez-Antuna v. Chase Manhattan
Bank Corporation, 871 F.2d 1, 3 (1st Cir. 1989)(denials of Rule
60(b) motions may be reversed only for abuse of discretion). We
find that the district court acted well within its discretion,
particularly in view of the extreme tardiness of Miller's re-
quests for relief in an action commenced in 1984. Moreover,
12Among these were treatments for anger, depression and self-control management, personality testing, relapse prevention treatment and plethysmographic assessment. But cf. note 11,
supra.
Miller misapprehends the district court ruling on his inadequate
treatment claim. The district court correctly ruled that Miller
failed to provide evidentiary support, or even a sufficient
proffer of evidence, to support the claim of inadequate treat-
ment, since he failed to show that the claim was not precluded
under the doctrine of stare decisis by Langton/Bruder. The
district court arrived at its decision on the basis of Miller's
ambiguous affidavit attesting that "he had 'not been afforded one
of the behavioral and pharmacological treatment modalities recom-
mended by the [RRB]' . . . ." Memorandum of August 26, 1991, at
p. 2. The district court supportably construed the quoted
language as a reference to the BTC's failure to administer
clozapine, as recommended by the RRB. Id. at 4. Relying on
Langton, the district court ruled that, without more, the BTC's
mere failure to provide this one recommended treatment was
insufficient to demonstrate a genuine issue of material fact.
Id. at pp. 3-4. As concerns the alleged "bumping" of Miller's
"therapists," see id. at 4, the district court correctly noted
that the term "bumping" is ambiguous and conclusory. Id. at 4-5.
Thus, the district court's disposition of Miller's motions for
reconsideration and for relief from judgment, see id. at pp. 5-6,
constituted no abuse of its discretion.
Thereafter, Miller filed additional postjudgment
motions. See Memorandum of November 4, 1991. The district
court denied Miller's motion to amend the pleadings to conform to
his Supplementary Affidavit. See Fed. R. Civ. P. 15(a),(b).
Here, we believe the district court erred in holding that Miller-
's "Supplementary Affidavit reveal[ed] no set of facts that would
entitle plaintiff to relief under the law as stated in the
Memorandum and Order of June 11, 1991." Id. at 3. The June 11
order relied on Langton/Bruder, but the Supplementary Affidavit
filed by Miller materially altered the record evidence tendered
in support of his inadequate treatment claim by relating numerous
other procedures and therapies recommended for Miller by the RRB
which were not afforded him by the BTC. In our view, the Supple-
mentary Affidavit may well have raised a genuine issue of materi-
al fact as to whether Miller's constitutional claim based on
inadequate treatment was actionable. Nevertheless, the district
court did not abuse its discretion. This court determined in
Langton that it was unnecessary, indeed inadvisable, for the
district court to address the constitutional claim to adequate
treatment "because the existing consent decrees 'require[d] the
provision of adequate treatment for [BTC] patients' at a level
beyond that required by any applicable constitutional minima."
Langton, 928 F.2d at 1217. And so it is here. Thus, although
Miller attempted to assert a constitutional right to treatment
based on professional judgment under Youngberg v. Romeo, 457 U.S.
307, 323 (1982), and such cases as Ohlinger v. Watson, 652 F.2d
775, 777 (9th Cir. 1981) (holding that sex offenders committed to
indeterminate life sentences have a constitutional right to
treatment providing a realistic opportunity for cure or improve-
ment), and Cameron v. Tomes, 783 F. Supp. 1511, 1516 (D. Mass.
1992) (holding that involuntarily committed SDP at BTC has
constitutional right to treatment based on professional judg-
ment), modified, slip op. 92-1343 (1st Cir., March 31, 1993),13
we think the district court did not abuse its discretion by
dismissing Miller's postjudgment motion to amend the pleadings so
late in the day.
III
Miller further argues that the district court erred in
holding that Langton bars his inadequate treatment claim because
he was not a party to Langton. Nevertheless, and notwithstanding
the dispute over whether Miller was voluntarily or involuntarily
committed to the BTC, see supra note 3 & accompanying text, it is
clear that he is among the plaintiff class in Langton/Bruder,
which is defined as "all individuals who are presently or in the
future will be civilly committed to the Treatment Center." See
Bruder, slip op. at p. 43.14 Moreover, both Miller and the
Bruder plaintiffs charged that the treatment received at the BTC
was not constitutionally adequate.
Finally, even if Miller's rights under the applicable
consent decree were violated, the appropriate vehicle for their
enforcement is not a section 1983 action but an action for
contempt (like the one filed by the Bruder plaintiffs two years
after Miller commenced this action). See, e.g., DeGidio v. Pung,
13We decided that Cameron's claim was a challenge to the conditions of confinement. See slip op. at pp. 12-13. Thus,
whether SDPs have a constitutional right to treatment remains an open question in this circuit. See slip op. at 11-12; Knight v.
Mills, 836 F.2d 659, 668 & n.13 (1st Cir. 1987).
14Miller's motion to intervene in Bruder sought intervention
as a named class representative. Its denial imported no finding that Miller was not adequately represented by the plaintiff class.
920 F.2d 525, 534 (8th Cir. 1990); Green v. McKaskle, 788 F.2d
1116, 1123 (5th Cir. 1986). Cf. Welch v. Spangler, 939 F.2d 570,
572 (8th Cir. 1991). Any other rule would tend to discourage
governmental authorities from entering into consent decrees in
public law litigation, encourage the splintering of civil rights
claims on an individual basis, and promote disrespect for judi-
cial decrees duly entered following careful proactive review of
the often complex mix of individual and institutional consider-
ations involved in such litigation.
IV
Miller next contends that the district court erred in
holding that he lacked standing to assert a constitutional right
of access to the courts on the part of certain other BTC patients
whom he assisted. Before the district court, Miller alleged that
he had been appointed as the legal research assistant for minimum
privilege and segregation patients on June 21, 1989 (five years
after he commenced this action). His responsibilities included
instructing such patients on the procedure for requesting legal
materials, assisting their preparation of legal pleadings, and
obtaining and returning books for patients. On March 31, 1991
(approximately two weeks before trial), the Department of Correc-
tions ("DOC") imposed certain restrictions which allegedly
prevented Miller from performing his duties as legal research
assistant. As of that date, Miller was prohibited from obtaining
books from the shelves of the law library. As a result, he was
no longer able to Shepardize cases nor to procure cases cited in
texts. In addition, Miller had to request books in advance so
that some other person could retrieve them. Miller alleged that
books requested by him often were not produced when Miller and
the patients arrived at the library. Other limitations allegedly
impinged on Miller's ability to communicate with the patients he
was supposed to assist.15 Miller alleged that these restric-
tions foreclosed meaningful legal research assistance to other
patients and that he was the only legal assistance afforded to
BTC.
The district court rejected the right of access claim
because Miller had not pleaded a third party claim and failed to
show that the patients he had been assisting had no other avenue
of relief. We affirm the dismissal of the third party claim; it
came too late. Cf. Andrews v. Bechtel Power Corp., 780 F.2d 124,
139 (1st Cir. 1985) (upholding denial of motion to amend com-
plaint after commencement of trial, where complaint had been
filed seven years earlier).
Affirmed; no costs.
15For example, Miller was required to sit at one table while the patients he assisted sat at separate tables in the library. Miller also claimed that often he was not notified by corrections officers that his assistance had been requested by patients.