Date: 09-03-2014

Case Style: Jeffrey M. Healey v. Louis S. Spencer

Case Number: 13-1546

Judge: McAuliffe

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: John A. Houlihan, for appellee Healey, and Harry L. Miles, for
appellee Given, with whom Hilary B. Dudley, Scott R. Magee, Kevin
Kam, Edwards Wildman Palmer LLP, Green, Miles, Lipton, LLP, Eric
Tennen, and Swomley & Tennen, LLP, were on brief, for
appellees/cross-appellants.

Defendant's Attorney: White, Special Assistant Attorney General, and Brendan J. Frigault,
Counsel, Massachusetts Treatment Center, were on brief, for
appellants/cross-appellees.

Description: Jeffrey Healey and Edward
Given reside in the Massachusetts Treatment Center in Bridgewater,
Massachusetts (the Treatment Center or Center). Each has been
civilly committed as a sexually dangerous person (SDP). In
separate suits, Healey and Given challenged the adequacy of sex
offender treatment provided by the Center as well as the conditions
of their confinement. They sought equitable relief against the
Massachusetts Department of Corrections, as well as the
Commissioner of Correction and the Superintendent of the Treatment
Center, in their official capacities (hereinafter referred to
collectively as DOC). The cases were consolidated.
Healey and Given alleged violations of the Constitution
and state statutory provisions. Healey also alleged that the DOC
was not in compliance with the terms of its plan for the management
of the Treatment Center — a management plan the DOC developed
during the course of prior litigation. Following a trial on the
merits, the district court entered a final order granting
plaintiffs declaratory and injunctive relief on some claims, but
entered judgment in favor of the defendants on the remaining
claims. Both sides appeal from the district court’s final
judgment. We affirm in part and reverse in part.
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I. Background
Massachusetts law provides for the involuntary civil
commitment of persons found to be sexually dangerous. Mass. Gen.
Laws ch. 123A, § 1 et seq. Under Section 2 of the civil commitment
statute, sexually dangerous persons may be placed in the Treatment
Center, for “care, custody, treatment and rehabilitation.” Id.
§ 2. Operational control of the Center is vested in the DOC. Id.
Each resident of the Center is permitted, by Section 9 of the
statute, to annually petition the Massachusetts Superior Court for
an examination and determination of whether he or she remains
sexually dangerous. Id. § 9.
An earlier version of the statute provided for shared
control of the Treatment Center by the DOC and the Massachusetts
Department of Mental Health (DMH). In 1972, Treatment Center
residents brought two lawsuits seeking to rectify a broad array of
appalling conditions, as well as inadequacies in treatment, work
opportunities, and avocational and educational activities at the
Center. See King v. Greenblatt (King I), 52 F.3d 1, 2 (1st Cir.
1995) and; Williams v. Lesiak, 822 F.2d 1223, 1224 (1st Cir. 1987).
That litigation gave rise to nearly three decades of judicial
oversight of the Treatment Center’s operations. The layered
history of that long-running period of judicial supervision can be
found in this Court’s related decisions. See, e.g., King v.
Greenblatt (King II), 149 F.3d 9, 11-12 (1st Cir. 1998) (recounting
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prior decisions); In re Pearson, 990 F.2d 653, 655 (1st Cir. 1993)
(same); Langton v. Johnston, 928 F.2d 1206 (1st Cir. 1991). During
that period, substantial improvements in both the conditions of
confinement and treatment protocols for Center residents were
realized, and, in 1999, the relevant equitable decrees were finally
terminated. See King v. Greenblatt (King III), 53 F. Supp. 2d 117,
139 (D. Mass. 1999). The general background that follows is
necessarily a condensed version of that history, but one sufficient
to illuminate the current issues.
In 1974, the district court entered two remedial consent
decrees in King and one in Williams, the parties having agreed that
the then prevailing conditions warranted judicial relief. See King
III, 53 F. Supp. 2d at 119. (The cases were later consolidated.
Id.) Conditions at the Treatment Center at that time “were
medieval — worse than those obtaining in the prison system,”
Langton, 928 F.2d at 1212, and included “cramped, poorly furnished
cells” without toilets or sinks; a polluted and unsafe water
supply; an “outmoded and sub-standard” sewerage system; obsolete
heating and ventilation equipment which caused some cells to go
unheated for days; a dearth of medical professionals; the absence
of a library, educational programs, gymnasium, outdoor recreation
area, work release or community access programs; and limited
vocational facilities. King III, 53 F. Supp. 2d at 119. The
consent decrees, which became known as the Original Decree and the
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Supplemental Decree, “aimed to correct” those and other
inadequacies. Id.1
The Original Decree provided that “patients at the
Treatment Center should have the least restrictive conditions
necessary to achieve the purposes of commitment.” King II, 149
F.3d at 15 (internal quotation marks omitted). That provision, we
noted in King II, was the Original Decree’s “substantive essence.”
Id. The decree’s more specific provisions required DMH and DOC to
“take steps jointly to improve physical conditions, implement a
meaningful work program, and have a system of differing security
for different categories of patients . . . to permit less
restrictive conditions for those patients not requiring maximum
security.” King III, 53 F. Supp. 2d at 120 (internal quotation
marks omitted). Defendants were also required “to submit a plan
for therapeutic, educational, vocational, and avocational programs
at the Treatment Center,” as well as for the short-term release of
residents into the community.2 Id. The Supplemental Decree
prohibited the placement of Treatment Center residents into
solitary confinement as punishment or for disciplinary purposes,
and required all sequestration to meet “minimum standards of due
1 For simplicity’s sake we refer to the Original Decrees in
King III and Williams collectively as the Original Decree.
2 That requirement was contained in the Original Williams
Decree, but not in the Original King Decree. See King III, 53 F.
Supp. 2d at 120.
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process” and “human decency.” Id. (internal quotation marks
omitted).
The decrees considered the Center a mental health
facility, with primary responsibility over residents and their
treatment vested in the Department of Mental Health. The
Department of Corrections, on the other hand, was responsible for
providing a secure setting. The DOC was expected to work
collaboratively with DMH to carry out the decrees’ requirements.
Id. at 119-20. The joint governance framework embodied in the
decrees mimicked the division of control described in the statute,
as it then existed.
For nearly two decades after entry of the consent
decrees, “[t]he stream of [enforcement] litigation occasionally
overflowed the district court,” Pearson, 990 F.2d at 655, much of
it occasioned by the conflicts inherent in DOC’s and DMH’s shared
governance of the Center.3 Shared governance by statutory command
came to an end in 1994, when the Massachusetts legislature
transferred all operational control of the Treatment Center to the
DOC. See 1993 Mass. Acts ch. 489. The Commonwealth then moved,
under Fed. R. Civ. P. 60(b)(5), to modify the consent decrees to
reflect that statutorily-directed change in governance. The
3 The Commonwealth abolished new civil commitments in 1990,
but reinstated the practice nine years later. The King III
litigation (during that interim period) addressed conditions
relative to persons civilly committed under the old law.
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district court at first denied the motion to modify, “finding that
DOC had not presented the Court with any information demonstrating
its ability to provide treatment in compliance with the consent
decrees.” King III, 53 F. Supp. 2d at 121. The court “invited DOC
to provide specific details in the form of a plan of how it
proposed to operate the facility.” Id. at 121-22. DOC, in
response, developed and proffered a detailed management plan and,
subsequently, an amended management plan (Plan).
Finding that the proffered Plan met the “goals of
treatment and security and protection of residents’ rights,” the
district court modified the outstanding decrees to reflect DOC’s
sole responsibility for the Treatment Center’s operation. Id. at
122. The Original Decree’s provisions governing the allocation of
state agency responsibility were modified, and the Supplemental
Decree’s “general proscription of disciplinary and punishment
procedures” was stricken, with solitary confinement “link[ed] . . .
to the offense underlying the original commitment of the
individual.” King II, 149 F.3d at 19. The Commonwealth’s
alternative request — for outright vacation of the decrees — was
denied, but without prejudice to its renewing that request after
one year. King III, 53 F. Supp. 2d at 122.
In several related appeals from the district court’s
modification orders, this Court determined that the modifications
passed muster under Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S.
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367 (1992). See King II, 149 F.3d at 19, 22. Rufo requires
institutional consent decree modifications to be grounded on a
“‘significant change’ in either factual conditions or in law” and
“‘suitably tailored to the changed circumstance.’” King I, 52 F.3d
at 4 (quoting Rufo, 502 U.S. at 383). We held that the state
statutory amendment constituted a significant change in law
impacting the Original Decree’s terms regarding the division of
control between DMH and DOC, id. at 6, and that factual
circumstances had changed sufficiently to warrant modification of
the Supplemental Decree’s “general proscription of disciplinary and
punishment procedures.” King II, 149 F.3d at 19, 22.
Addressing Rufo’s second prong, we anticipatorily
scrutinized the DOC’s Plan, id. at 15, and determined, based on
that review, that the change in Treatment Center governance did not
“appear likely to undermine the Original Decree or to violate the
Constitution.” Id. at 19. Importantly, in making that
determination, we emphasized that the Plan itself did not
constitute a modification of the Original Decree, but represented,
instead, the “ways in which DOC aspire[d] to fulfill the
requirements of the Original Decree.” Id. at 15. Just as the
“policies and practices that [had] been relied on in the past by
DMH” constituted that agency’s response to its obligation under the
decree “to achieve effective treatment under the least restrictive
conditions,” the Plan represented the DOC’s own proposed means of
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achieving the same goal. Id. We also held, upon review of the
Plan’s provisions regarding “clinical treatment programs and
procedural safeguards,” and its specifications for a disciplinary
system, that the modifications to the Supplemental Decree were
suitably tailored to the changed circumstances. Id. at 22.
Within a year of this Court’s decision in King II, the
Commonwealth again filed a motion to vacate or, in the alternative,
to terminate the consent decrees. King III, 53 F. Supp. 2d at 123.
After full discovery and a hearing, the district court granted the
motion to terminate the decrees and closed the King III and
Williams cases. Id. at 139.
In a thorough decision, the district court (Mazzone, J.)
correctly identified and applied the relevant legal standards, as
described in Bd. of Educ. v. Dowell, 498 U.S. 237 (1991). And,
after considering a voluminous record that included testimony of
Treatment Center professionals and residents, Plan provisions, and
the DOC’s record of implementing those provisions, the court found
that “the underlying conditions that existed when the decrees were
entered have been remedied and that the Commonwealth has complied
with the decrees in good faith since they were entered.” King III,
53 F. Supp. 2d at 136. “The evidence,” the court determined,
“clearly shows that the consent decrees have served the purpose of
correcting those conditions and are no longer necessary to maintain
those improvements.” Id. at 125. Judge Mazzone further concluded
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that “there is little or no likelihood that the Treatment Center
will revert to an earlier time, nor that the constitutional
violations will be repeated when the decree is lifted.” Id. at
136. Satisfied that the preconditions to decree termination were
met, Judge Mazzone terminated the decrees. Id. at 139.
In a preface to his findings, Judge Mazzone acknowledged
that “there may be issues arising out of the administration of the
Plan in the future if DOC becomes indifferent to its
responsibilities both under the statute and the Plan to keep
residents separate and apart from inmates.” Id. at 136. He
suggested that, “[i]f ignored, the Plan will simply replace the
consent decrees as the basis of future complaints and the parties
will be destined for a future generation of litigation.” Id. He
found, nevertheless, that “the Commonwealth has sustained its
burden of demonstrating” that the preconditions to termination of
the decrees had been met and specifically concluded that “these
consent decrees should be terminated.” Id.
In an epilogue to his findings, Judge Mazzone offered the
following commentary which, for comprehensiveness and context, we
repeat in its entirety:
I believe the Management Plan is an
enforceable operating document that recognizes
the improvements made as a result of the
consent decrees over the years and
acknowledges DOC's responsibilities to manage
the Treatment Center accordingly.
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I recognize that residents will
continue to voice their complaints about the
circumstances of their existence at the
Treatment Center. This decision does not
preclude them from challenging events on the
basis of constitutional or other protected
rights. In the first place, residents may
bring an action to enforce the terms of the
existing Plan. Moreover, as the First Circuit
stated in affirming a district court's
decision to terminate another consent decree,
plaintiffs remain “free to initiate a new
round of proceedings designed to show that
post-termination conditions actually do
violate their federally protected rights.”
Rouse, 129 F.3d at 662. I remind the parties
again today that any new allegations of
unconstitutional conditions or treatment will
be addressed in separate proceedings.
Id. at 137 (emphasis added).
Two years after the consent decrees were terminated,
Healey brought this suit challenging both the conditions of his
confinement at the Treatment Center and the adequacy of his sexual
offender treatment. In 2005, Healey’s case was consolidated with
a similar suit in which Given was later joined as plaintiff.4 Both
Healey and Given alleged violations of various constitutional
rights. Healey also alleged that the DOC was in violation of
numerous provisions of the Plan. Arguing that the Plan constitutes
a settlement agreement, Healey alleged a breach of contract by the
DOC and, contending that the Plan amounts to an enforceable court
4 In 2005, Healey’s suit was consolidated with a case brought
in 2004 by then-resident Joel Pentlarge. Given was joined as a
plaintiff in Pentlarge’s suit in 2006. Pentlarge dropped his
request for monetary damages and was dismissed from the suit upon
his release from the Treatment Center in 2006.
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order, he alleged that Plan violations can be remedied in the
context of contempt proceedings. Both Healey and Given sought
permanent injunctive relief on their own behalf; no class was
certified.
The district court (Gertner, J.) determined that the Plan
was not properly construed as an enforceable settlement agreement.
But, relying on Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 380-81 (1994), it held that the Plan was enforceable as a
court order. Under Kokkonen, a federal court retains subject
matter jurisdiction to enforce a settlement agreement if the
dismissal order incorporates the terms of the agreement or if the
court retains jurisdiction to enforce it. Id. at 381. The
district court determined that Judge Mazzone had “effectively
incorporated the Plan into [his] order allowing the termination of
the consent decrees,” such that the Plan acquired the character of
a court order over which the court retained continuing jurisdiction
to enforce. Central to the district court’s reasoning was its
apparent conclusion that Judge Mazzone’s termination of the consent
decrees was conditional on the Plan’s having attained the status of
an enforceable injunctive order.5
5 The district court’s reasoning is found in Magistrate Judge
Dein’s report and recommendation, which was adopted by Judge
Gertner. Chief Judge Saris later declined to revisit the issue,
reasoning that Judge Gertner’s earlier resolution was controlling,
as “law of the case.” Healey v. Murphy, Nos. 01-11099, 04-30177,
2013 WL 1336786, at *14 (D. Mass. Mar. 29, 2013).
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After additional dispositive rulings, Judge Gertner
presided over a ten-day bench trial on the remaining claims, which
included Healey and Given’s claims that the DOC’s failure to
provide adequate treatment violated their Fourteenth Amendment
substantive due process rights; claims for violations of several
other constitutional provisions; and Healey’s claim that the DOC
was in violation of numerous Plan requirements. While post-trial
mediation proceedings were being conducted, Judge Gertner retired.
The case was reassigned to Chief Judge Saris who presided over a
second, shorter, trial. See Fed. R. Civ. P. 63 (describing the
procedure when one judge replaces another before the completion of
a trial). After the second trial, Chief Judge Saris issued a
Memorandum and Order and Final Judgment and Order.
The district court entered judgment for the DOC on most
of Healey’s claims, but ruled that the DOC violated some of its
obligations under the Plan, as well as Healey’s substantive due
process rights, by failing to provide adequate pharmacological
evaluation and treatment. Healey, 2013 WL 1336786, at *19. The
district court further held that the DOC violated both Plan and
state statutory requirements (but not Healey’s due process rights)
by failing to provide a functioning Community Access Program (CAP).
See id. at *28. The district court found in favor of Given only on
his claim that the DOC violated his substantive due process rights
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by failing to provide adequate pharmacological evaluation and
treatment. See id. at *19.
The district court ordered the DOC to “have Healey and
Given evaluated by a qualified psychiatrist and, if appropriate,
provide them pharmacological treatment.” Id. at *47. The district
court declined to afford injunctive relief to Healey with respect
to his CAP claim, because his “persistent behavioral problems”
rendered him ineligible for the program. Id. at *46. The court,
did, however, enter a broad injunction requiring the DOC to “meet
the requirements of the Amended Management Plan in all material
respects.” Id. at *47.
The DOC appeals the declaratory judgment in favor of
Healey on his claim that it violated its obligations under the Plan
and failed to provide adequate pharmacological evaluation and
treatment. The DOC also challenges the district court’s injunction
to the extent it recognizes the Plan as an enforceable court order,
and requires compliance with its provisions. For his part, Healey
also appeals from the injunction compelling DOC’s compliance with
the Plan, arguing that the district court should have required
more, and erred in not finding additional Plan violations. Healey
and Given both challenge the district court’s determinations that
the DOC, in several respects, did not violate their constitutional
rights, including its determination that the DOC’s failure to
provide a functioning Community Access Program does not violate
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their constitutional right to due process. Neither side has
challenged the district court's determination that the Constitution
requires the defendants to offer the plaintiffs adequate
pharmacological evaluation and treatment.
II. Standard of Review
We review the district court’s grant of permanent
injunctive relief for abuse of discretion. Asociacion de Educacion
Privada de P.R., Inc. v. Garcia-Padilla, 490 F.3d 1, 8 (1st Cir.
2007). Factual findings are reviewed for clear error and questions
of law de novo. Id. The district court’s rulings regarding the
constitutionality of the conditions of confinement at the Center
and the adequacy of its sex-offender treatment program present
mixed questions of law and fact which might not sit neatly at
either end of the review spectrum. “An inquiry into whether
current [institutional] conditions constitute an ongoing violation
of a federal right ‘comprises a mixed question of fact and law, the
answer to which we review along a degree-of-deference continuum,
ranging from plenary review for law-dominated questions to clearerror
review for fact-dominated questions.’” Morales Feliciano v.
Rullan, 378 F.3d 42, 52-53 (1st Cir. 2004) (quoting Inmates of
Suffolk Cnty. Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997)).
Here, we need not decide where, precisely, on the continuum our
review of the district court’s constitutional determinations should
fall for, “even under the more appellant-friendly lens of de novo
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review,” Healey and Given’s “claim[s] of error [are] unavailing.”
United States v. Gonzalez, 736 F.3d 40, 42 (1st Cir. 2013).
III. Discussion
To issue a permanent injunction, the district court must
find that: “(1) plaintiffs prevail on the merits; (2) plaintiffs
would suffer irreparable injury in the absence of injunctive
relief; (3) the harm to plaintiffs would outweigh the harm the
defendant would suffer from the imposition of an injunction; and
(4) the public interest would not be adversely affected by an
injunction.” Garcia-Padilla, 490 F.3d at 8.
Although the parties devote considerable attention to the
element of irreparable harm, this case can be resolved by answering
two basic questions that relate to the merits. The first question
is whether the Plan is an enforceable court order. That question,
which we answer in the negative, is necessary to Healey’s contempt
claim and central to both the DOC’s accountability for its failure
to follow Plan provisions and Healey’s claim that the district
court did not do enough to enforce the Plan. The second question,
broadly speaking, is whether, as Healey and Given argue, the
district court erred in not finding additional constitutional
violations.
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A. Plan Violations
The district court’s construction of the Plan as,
effectively, an enforceable court order, is in error. An order
enforceable on pain of contempt, as the district court construed
the Plan to be, is an injunction. See Int’l Longshoremen’s Ass’n,
Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 75
(1967) (“[A]n equitable decree compelling obedience under the
threat of contempt . . . [is] an ‘order granting an injunction.’”)
(quoting Fed. R. Civ. P. 65(d)). The Plan, however, was clearly
not offered as a proposed decree meant to be substituted for the
existing consent decrees that were being terminated. Indeed, the
Plan was never entered as an order, and certainly not an order that
was consistent with the requirements of Fed. R. Civ. P. 65(d).6
Moreover, Judge Mazzone did not, either expressly or impliedly,
condition termination of the existing consent decrees on the Plan’s
status as an enforceable injunction, as plaintiffs contend.
6 Rule 65(d) governs the “[c]ontents and [s]cope of [e]very
[i]njunction,” clearly providing that “[e]very order granting an
injunction . . . must . . . state its terms specifically . . . and
. . . describe in reasonable detail — and not by referring to the
complaint or other document — the act or acts sought to be
restrained or required.” Fed. R. Civ. P. 65(d). These
requirements “are not ‘mere[ly] technical’ but are ‘designed to
prevent uncertainty and confusion . . . and to avoid’ basing a
‘contempt citation on a decree too vague to be understood.’” NBA
Props., Inc. v. Gold, 895 F.2d 30, 32 (1st Cir. 1990) (quoting
Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam)).
Accordingly, “[t]o be enforceable in contempt, an injunctive decree
must satisfy” Rule 65(d)’s “specificity requirements.” Burke v.
Guiney, 700 F.2d 767, 769 (1st Cir. 1983).
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In his final decision, Judge Mazzone commented pointedly
and forcefully about his hope for, and expectations of, the Plan.
His comments, upon which Given and Healey heavily rely, that “I
believe the Plan is an enforceable operating document” and that
“[i]n the first place, residents may bring an action to enforce the
terms of the existing plan,” are at best ambiguous in context. But
even broadly construed, these passing comments simply cannot
provide the necessary positive command of an order “compelling
obedience under the threat of contempt,” particularly when they
were made in the course and context of terminating consent decrees
that mandated essentially identical legal obligations. Int’l
Longshoreman’s Ass’n, 389 U.S. at 75.7
The critical point, however, is that Judge Mazzone did
precisely what he intended to do — we perceive no misstep on his
part. The highly respected judge was fully capable and
experienced; he knew how to issue an injunction and how to make it
stick. Viewing his decision in the full context of this decadesold
litigation, it is plain to us that Judge Mazzone dissolved the
existing consent decrees, while simultaneously exhorting the DOC
not to regress, to continue to implement the Plan as the right
thing to do, and to recognize that failure to maintain the then-
7 The comment is best understood as a general prediction, to
the effect that should the Commonwealth revert to prior
unacceptable practices, the Plan’s terms would likely serve as a
solid blueprint for future injunctive relief.
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acceptable conditions would surely result in yet additional costly,
disruptive, and likely successful litigation. As judicial
oversight of the DOC’s operation of the Treatment Center came to an
end, the judge’s comments were meant to counsel, not dictate.
Acknowledging federalism’s demand that judicial oversight not
continue in perpetuity, Judge Mazzone considered the record
evidence, applied the proper legal standards, and correctly
concluded that the time had arrived to terminate judicial
supervision. King III, 53 F. Supp. 2d at 124-25, 136. Terminating
the decrees, he remarked, removed from the DOC’s operations “a
constant reminder of the federal court’s presence.” Id. at 136.
The Plan was important, of course. It supplied the
assurance of continuing constitutionally acceptable conditions
necessary to support the court’s termination of the decrees.
Because the unconstitutional conditions had been remedied,
assurances of future adequacy had been given and found credible,
and the consent decrees had outlived their usefulness, the judge’s
path to termination was well-marked. See Freeman v. Pitts, 503
U.S. 467, 489 (1992) (“We have said that the court’s end purpose
must be to remedy the violation and, in addition, to restore state
and local authorities to the control of a school system that is
operating in compliance with the Constitution.”)
The Plan cannot plausibly be characterized as a
replacement consent decree. A consent decree is both a settlement
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and an injunction. Aronov v. Napolitano, 562 F.3d 84, 91 (1st Cir.
2009). For the reasons given, the Plan is not an enforceable
injunction. In any event, Judge Mazzone’s future-looking reference
to the Plan “replac[ing] the consent decrees” can hardly be thought
to mean that the consent decrees were being swapped-out for the
Plan, as an injunction. The issue for decision was whether court
supervision, through enforcement of the consent decrees, should be
terminated. Terminating the consent orders only to simultaneously
replace them with virtually coextensive Plan provisions, as an
injunctive order, would have merely maintained the status quo.
Judge Mazzone of course did not intend to continue judicial
supervision of the Center.
The Supreme Court also has cautioned that a district
court must be explicit if it wishes to retain jurisdiction to
enforce the terms of a settlement agreement by, for example,
incorporating the terms of the settlement agreement into its final
order. See Kokkonen, 511 U.S. at 381. Judge Mazzone's order, read
in toto, does not by any stretch of the imagination explicitly
retain continuing jurisdiction over the matter. In point of fact,
it gives the opposite impression. By the same token, the order
does not incorporate the terms of the Plan.
All of this is not to say that Judge Mazzone’s comments
about the Plan’s role as an operating document served no purpose.
The end of judicial oversight in institutional reform cases often
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brings with it appropriate judicial warnings cautioning defendants
to avoid future repetition of past violations. It seems to us that
Judge Mazzone’s comments fell comfortably within that commendable
tradition. See, e.g., People Who Care v. Rockford Bd. of Educ.
Sch. Dist. 205, 246 F.3d 1073, 1078 (7th Cir. 2001) (Posner, J.)
(“It should go without saying that if the board takes advantage of
its new freedom from federal judicial control to discriminate
against minority students in violation of federal law, it will
expose itself to a new and draconian round of litigation. We trust
that $238 million later, it has learned its lesson.”); Tasby v.
Moses, 265 F. Supp. 2d 757, 781 (N.D. Tex. 2003) (“[T]he [School]
District must adhere to the Covenants and Commitments adopted by
the Board and relied on by the Court in reaching its decision
today.”); Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch.
Dist., 237 F. Supp. 2d 988, 1089 (E.D. Ark. 2002) (“As a final
caveat, I want to caution the Board that it must be careful in how
it uses its newly restored wings. Just as Icarus could not resist
the temptation to fly too close to the sun, causing his waxen wings
to melt, the Board must keep the Constitution in sight at all times
in making future decisions regarding the operation of the Little
Rock school system. Otherwise, LRSD will find itself embroiled in
another round of costly litigation, with the possibility of still
more court supervision and monitoring. I do not want this, and I
assume LRSD does not.”), aff’d 359 F.3d 957 (8th Cir. 2004).
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Healey argues, in the alternative, that even if the Plan
is not the equivalent of an enforceable order, still, the DOC
should be judicially estopped from denying its enforceability. He
says that the position the DOC currently takes — that it is not
judicially bound by the Plan — is inconsistent with litigation
positions it has taken in the past. The argument is not
persuasive.
“‘[T]he doctrine of judicial estoppel prevents a litigant
from pressing a claim that is inconsistent with a position taken by
that litigant either in a prior legal proceeding or in an earlier
phase of the same legal proceeding.’” Alt. Sys. Concepts, Inc. v.
Synopsys, Inc., 374 F.3d 23, 32-33 (1st Cir. 2004) (quoting
InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003)). The
doctrine is “judge-made” and is “designed to protect the integrity
of the judicial system.” Perry v. Blum, 629 F.3d 1, 10 (1st Cir.
2010) (citing New Hampshire v. Maine, 532 U.S. 742, 749 (2001)).
Although its “contours . . . are hazy” and “its elements cannot be
reduced to a scientifically precise formula, . . . courts generally
require the presence of three things before introducing the
doctrine into a particular case.” Id. at 8-9. First, the “earlier
and later positions must be clearly inconsistent,” id. at 9, “that
is, mutually exclusive.” Alternative Sys. Concepts, 374 F.3d at
33. “Second, the party must have succeeded in persuading a court
to accept the earlier position.” Perry, 629 F.3d at 9. Lastly,
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“the party seeking to assert the inconsistent position must stand
to derive an unfair advantage if the new position is accepted by
the court.” Id.
Healey identifies two prior DOC positions that, he says,
directly contradict the DOC’s current position. He points first to
the fact that the DOC presented the Plan to the King III court, as
its then current and future strategy for running the Treatment
Center, in support of its motions to modify and terminate the
consent decrees. Healey implies (but does not argue explicitly)
that, by doing so, the DOC represented to the court that it was
undertaking the obligation, under pain of contempt, to implement
the Plan, presumably indefinitely into the future. Healey also
contends that, following termination of the decrees in 1999, the
DOC repeatedly put forth arguments, including in this case, that
hinge on Treatment Center residents being bound by the Plan.
Although the DOC purportedly took that position “repeatedly,”
Healey gives only one such example. In the district court, the DOC
moved to dismiss the constitutional claims. It argued that those
claims are barred by res judicata on grounds that Judge Mazzone had
implicitly found that the Plan did not violate any state or federal
rights.
The minimum prerequisites for judicial estoppel have not
been met here. The DOC’s prior positions are not “directly
inconsistent” with the position it takes now. As we have already
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noted, at the consent decree modification stage in King III the
Plan served the evidentiary purpose of providing assurance to the
court that the shift to sole control of the Center by the DOC would
not undermine the decrees’ provisions. At the decree termination
stage, the DOC, like most defendants seeking release from
institutional reform decrees, did not commit to follow its Plan
indefinitely under threat of contempt, but instead offered the Plan
as evidence of compliance with its outstanding legal obligations,
and as assurance that it was unlikely to revert to its old
unconstitutional ways once the decrees were lifted.
The DOC’s res judicata argument in the court below is,
likewise, not directly contradictory to its position here. The
argument that Treatment Center residents are bound by (purported)
judicial determinations regarding the Plan’s constitutionality is
not inconsistent with a subsequent position that the DOC is not
bound, on pain of contempt, to follow the Plan. The two positions
relate to very different issues and are obviously not mutually
exclusive.
For these reasons, we hold that the Plan is not, and was
not meant by Judge Mazzone to be, an enforceable court order.
Healey is not, therefore, entitled to declaratory or injunctive
relief based on Plan violations. We, necessarily, reverse the
district court’s declaratory judgment in favor of Healey on his
claim that DOC is in contempt of court for failing to comply with
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provisions of the Plan. We also necessarily reverse the district
court’s affirmative injunction requiring DOC to “meet the
requirements of the Amended Management Plan in all material
respects.” Healey, 2013 WL 1336786, at *47.
B. Constitutional Violations
Healey and Given also challenge the district court’s
determination that conditions at the Center (other than inadequate
pharmacological treatment) do not violate their due process rights
under the Fourteenth Amendment. We find no error.
Civilly committed sexually dangerous persons are entitled
to conditions of confinement that comport with minimum Fourteenth
Amendment due process standards. Cote v. Murphy, 152 Fed. Appx. 6,
7 (1st Cir. 2005) (per curiam) (citing Seling v. Young, 531 U.S.
250, 265 (2001)). Even if no single condition runs afoul of
constitutional protections, still, a combination of conditions may
violate a resident’s due process rights. See id. (noting that
double bunking is not per se unconstitutional, but that condition
could violate due process if “combined with other adverse
conditions”). Disagreeable conditions can, however, be consistent
with the demands of due process, so long as they do not amount to
punishment. That is, so long as they “‘bear some reasonable
relation to the purpose[s] for which persons are committed.’” Id.
(alterations in original) (quoting Seling, 531 U.S. at 265). As
noted earlier, under the Commonwealth’s statute, commitments to the
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Treatment Center are made for the purpose of providing for the
“care, custody, treatment and rehabilitation” of those found to be
sexually dangerous to the community. Mass. Gen. Laws ch. 123A § 2.
We have stressed that these statutory purposes encompass “not only
treatment and rehabilitation but public safety.” Cote, 152 Fed.
App’x at 7; see also Miller v. Dukakis, 961 F.2d 7, 9 (1st Cir.
1992) (“[P]lacement at the Treatment Center [is] intended, at least
in part, to protect society.”)
When challenging the treatment provided as
constitutionally inadequate, civilly committed persons must show
that “the defendant failed to exercise a reasonable professional
judgment.” Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011).
“States enjoy wide latitude in developing treatment regimens,”
Kansas v. Hendricks, 521 U.S. 346, 368 n.5 (1997), and “there can
be more than one reasonable judgment.” Battista, 645 F.3d at 453
(citing Youngberg v. Romeo, 457 U.S. 307, 321 (1982)).
The district court thoroughly reviewed the DOC’s sex
offender treatment program. It examined the qualifications of
professionals involved in developing the program, the steps taken
by those professionals to keep the program current with evolving
practices in the field, and the DOC’s implementation of the
program. It found that the treatment program is based on
“considerable research in the field,” Healey, 2013 WL 1336786, at
*12, and is at the “cutting edge of cognitive behavioral therapy
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for sex offenders,” id. at *30. While acknowledging some problems,
such as the DOC’s failure to collect important data and assess “the
efficacy of the . . . program,” the court nevertheless concluded
that the program “is in accordance with best professional judgment
and does not violate . . . the Constitution.” Id.
We have recognized that the DOC confronts “legitimate
security concerns,” Langton v. Johnston, 928 F.2d at 1216, in its
operation of the Treatment Center because, by definition under the
state statute, every resident of the Center has committed sexual
crimes and has been found by a court, beyond a reasonable doubt, to
suffer from a mental condition that renders him likely to reoffend.
See Mass. Gen. Laws ch. 123A § 1 (defining an SDP). We have also
recognized that the interest in safety within the Treatment Center
itself may be critical to the delivery of adequate treatment. See
Langton, 928 F.2d at 1220 n.17 (“[A]n unsafe environment would be
one in which the ability to deliver effective therapeutic services
would be drastically reduced.”). A court inquiring into the
conditions under which sexually dangerous persons are confined must
“accord[] wide-ranging deference” to the judgment of facility
administrators as to what is “needed to preserve internal order and
discipline and to maintain institutional security.” Bell v.
Wolfish, 441 U.S. 520, 521 (1979) (prison context).
The district court did find that there is no functioning
community access program at the Treatment Center in contravention
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of applicable state law and the Plan. But it also determined,
correctly, that such a program is not constitutionally required.
The district court pointed out that plaintiffs “submitted no expert
testimony or professional standards stating that civilly committed
sex offenders must have a community access program,” and that they
had not “explained why a meaningful treatment program using the
. . . model of therapy” employed at the Center, “combined with the
section 9 release process is not constitutionally sufficient.”
Healey, 2013 WL 1336786, at *28.
Healey and Given do not challenge the district court’s
factual findings, but argue that it failed to consider conditions
at the Treatment Center in combination. They point to conditions
which, they say, when considered as a whole, create an environment
that is not reasonably related to the purposes of commitment,
especially rehabilitation (i.e., the lack of a treatment program
“calculated to ready Residents for release into the community
within a reasonable time”; the absence of a meaningful community
access program; and a punitive level of security).
In assessing prevailing conditions at the Treatment
Center, the district court applied the relevant due process
standards and accorded appropriate deference to administrators with
respect to safety issues. After visiting the Treatment Center and
thoroughly reviewing the relevant evidence, the district judge
concluded that, with the exception of inadequate pharmacological
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treatment, conditions at the Center do not violate Healey or
Given’s substantive due process rights.
The court reviewed aspects of the physical conditions of
confinement at the Center and found that, among other things, the
DOC’s telephone restrictions, property restrictions, use of
shackles when transporting residents outside the Center,
elimination of room visits, and system of privileges all address
legitimate security concerns. It concluded, therefore, that those
conditions, either alone or in combination, do not violate
residents’ rights to due process.
Having thoroughly reviewed the district court’s decision
and the pertinent record, we discern no error. The district court
recognized and correctly applied the relevant legal standards, and
it expressly acknowledged that “[a]lthough . . . conditions may not
state a due process claim when considered individually, [they
could] when taken together.” The court carefully considered all
the evidence, made extensive factual findings, and meticulously
applied the appropriate legal standards. It is clear to us that
the district judge assessed the conditions both individually and in
combination. The unchallenged factual findings fully support the
district court’s determination that, apart from inadequate
pharmacological treatment, conditions at the Treatment Center do
not offend Healey and Given’s substantive due process rights.

Outcome: We affirm in part and reverse in part the district
court’s final judgment and order. The declaratory judgment in
favor of Healey on his contempt claim (Count I), as well as
injunctive relief compelling the Commonwealth’s compliance with the
Plan’s provisions, are reversed. The district court's judgment for
the plaintiffs regarding the constitutionality of the
pharmacological evaluation and treatment provided by defendants was
not challenged on appeal and, thus, survives without regard to the
proceedings before us. The district court’s judgment in favor of
defendants in all other respects is affirmed. The parties shall
bear their own costs.

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