December 9, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1787
ROGER D. ANYON,
Plaintiff, Appellant,
v.
LEONARD MACH, ET AL.,
Defendants, Appellee.
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.
Roger D. Anyon on brief pro se.
Scott Harshbarger, Attorney General, and William L. Pardee,
Assistant Attorney General, on brief for appellees, Leonard Mach,
Eileen Elias, Robert Fine, William O'Leary, Elaine Hill, Paul
Scopa and Rick Picket.
Jon S, Hartmere, Special Assistant Attorney General, on
brief for appellees, Gregory M.S. Canfield and Barbara Schwartz.
Per Curiam. Pro-se appellant, Roger Anyon, 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 and the federal consent decree requiring the
remedying of conditions at the Treatment Center. See, e.g.,
Williams v. Lesiak, 822 F.2d 1223 (1st Cir. 1987); Langton v.
Johnston, 928 F.2d 1206 (1st Cir. 1991). He seeks
declaratory and injunctive relief.1 Appellees are officers
and employees of the Commonwealth of Massachusetts. The
district court dismissed Anyon's complaint for failure to
state a claim upon which relief can be granted. We affirm.
Background
Anyon 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 for life. As a patient at
the Treatment Center, Anyon 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
1. Anyon has dropped all claims seeking monetary relief.
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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-
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, 928 F.2d at
1228.
Anyon participated in the short-term release program for
several years prior to August 1991. At that time, 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
revised rules, a resident, like Anyon, who is under a
criminal sentence and neither paroled to the Treatment Center
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nor eligible for parole, is ineligible to participate in the
program. Anyon asserts that these Transition Program rules
deprive him of his constitutional rights to due process and
equal protection, and violate his constitutional rights
against ex post facto legislation and double jeopardy.2
Finally he asserts that the rules are in violation of the
federal consent decree.
Discussion
Anyon 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).
Moreover, the state is not prohibited from making this
revision by the fact that it extinguished any liberty
interest Anyon may have had under the prior rules for short-
term release. See Tracy v. Salamack, 572 F.2d 393, 396 (2d
Cir. 1978) (prisoners who were previously entitled to
participate in transition program have no entitlement to such
participation which would "have the effect of prohibiting
alteration of the underlying law which creates the
entitlement"). Finally, since Anyon concedes that he does
2. Anyon also asserts that the revised program violates the
eighth amendment prohibition against cruel and unusual
punishment. This claim is without merit.
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not meet the eligibility requirements of the revised rules,
he no longer has any state created liberty interest in short-
term release which would implicate the federal right to
procedural due process.
Likewise, the Transition Program 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).
Anyon's allegations that the Transition Program rules
violate the double jeopardy and ex post facto clauses of the
Constitution fail because both these clauses pertain only to
punishments inflicted by the government. See, e.g.,
Helvering v. Mitchell, 303 U.S. 391, 398-99 (1938) (double
jeopardy); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-
26 (1867) (ex post facto). The revised rules for short-term
release, 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 Anyon's allegation
that he has been "punished" by being deprived of his previous
right to participate in the short-term release program,
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insofar as this is an allegation that he has been 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 an
allegation that he has been 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, 303 U.S. at
399. As such, they do not implicate either the ex post facto
or the double jeopardy clause.3
Finally, we find no error in the district court's
failure to consider Anyon's claims that his rights under the
applicable consent decree have been violated. 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
3. We express no opinion as to whether or not Anyon's
participation in the release program is within the scope of
treatment required by the constitution or the consent decree.
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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).
Affirmed.
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