Roe v. Hogan

          MEMORANDUM OF DECISION RE: MOTION FOR COMPLIANCE (ECF NO. 168)

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         Kari A. Dooley, United States District Judge Pending before the Court is the motion for compliance filed by Anthony Dyous on June 10, 2019. (ECF No. 168.) For the reasons stated herein, Dyous' motion is found as MOOT in part and otherwise DENIED.

         Procedural History

         On August 31, 1989, patients committed to the jurisdiction of the Connecticut Psychiatric Security Review Board (“PSRB”) filed this class action lawsuit against various Commissioners of the Department of Mental Health and Addiction Services.^[1] “The class alleged violations of: (1) their right to appropriate medical and psychiatric treatment, (2) right to be free from unnecessary restraint, (3) their right not to be deprived of their liberty without due process of law, and (4) their right not to be discriminated against because of their mental handicap as guaranteed by the First and Fourteenth Amendments of the United States Constitution.” Roe v. Hogan, No. 2:89-cv-00570 (PCD), 2005 WL 8167655, at *1 (D. Conn. Sept. 30, 2005).

         In December of 1990, the parties settled the claims through the entry of a consent decree (the “Decree”), which remains in full force and effect today. The stated purpose of the Decree is to ensure that PSRB patients are not “denied access to appropriate therapeutic, recreational, rehabilitative or leisure activities which are available to other patients solely because of the patient's commitment to the PSRB.” (Decree at ¶ 11.) It recognizes that “[a]ppropriate psychiatric treatment requires that patients be given increasing levels of freedom and responsibility consistent with their individual clinical status.” (Id. at ¶ 12.) It further requires that decisions concerning the care and treatment of PSRB patients be made “only after an individualized evaluation and assessment of each patient which explicitly considers and documents the patient's mental status and degree of danger, if any.” (Id. at ¶ 13.) To that end, the Decree sets forth several policies and procedures designed to ensure that PSRB patients are treated on an individualized basis and in a manner that is least restrictive on their freedom. (See generally Id. at ¶¶ 15, 17-21.)

         The Decree also contains an enforcement provision, which permits plaintiffs to initiate proceedings in this Court to seek compliance with the Decree's terms. (Id. at ¶ 29.) Dyous is currently committed to the jurisdiction of the PSRB and resides at Dutcher Enhanced Security Service (“Dutcher”) at Whiting Forensic Hospital (“Whiting”). (Mot. for Compliance at 1; T. Wasser Aff. at ¶ 4, ECF No. 169-1.)

         Discussion

         A consent decrees establishes legally binding responsibilities among parties. “Consent decrees are a hybrid in the sense that they are at once both contracts and orders, they are construed largely as contracts, but are enforced as orders.” Berger v. Heckler, 771 F.2d 1556, 1567-68 (2d Cir. 1985) (citations omitted). “Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. . . . For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because the defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation.” United States v. Armour & Co., 402 U.S. 673, 681-82 (1971).

         Nevertheless, “[s]ince a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. Such reliance does not in any way depart from the ‘four corners' rule of Armour.” United States v. ITT Cont'l Baking Co., 420 U.S. 223, 238 (1975) (footnote omitted).

         Here, Dyous contends that the Defendants are violating the Decree by (1) denying him Level 4 pass privileges, ^[2] (2) banning internet and e-mail access at Dutcher; (3) banning the use of cell phones and tablets at Dutcher, and (4) not providing an “appropriate venue for adult consensual relations to take place” at PSRB and Whiting facilities. (Mot. for Compliance at 3.) The Defendants respond that the first claim is moot because, as of July 2019, “Dyous now has a Level 4 pass.” (Defs.' Response Mem. at 1, ECF No. 174.) They further assert that the PSRB's involvement in the issuance of such passes is both appropriate, and in some circumstances, required. (Id.) The Defendants also argue that the bans on e-mail, electronic devices, and consensual relations (collectively, the “Bans”) further legitimate safety and privacy interests and, in any event, are not matters addressed in or covered by the Decree. (Defs.' Opp. Mem. at 4-6, ECF No. 169.)

         Level 4 Pass

         As indicated, Dyous asserts that the Defendants are violating the Decree by denying him a Level 4 pass; (Mot. for Compliance at 3); and by “consulting, coordinating, notifying or requesting permission from the PSRB” when granting Level 4 pass privileges; (Mov.'t Reply Mem. at 8, ECF No. 173; see also Id. at 1-2.)

         By way of brief background, a PSRB patient's treatment team sets his or her privilege level. (T. Wasser Aff. at ¶ 5.) A Level 4 pass permits unsupervised trips into the community. (Defs.' Opp. Mem. at 3.) Although the treatment team sets the pass level, the PSRB sometimes requests to be informed in advance of Whiting's intention to grant a Level 4 pass to a particular patient. (T. Wasser Aff. at ¶ 5.) In response to that notice, the PSRB may then choose to hold a status review hearing on the patient's progress. (Id.) After such a hearing, the PSRB may decide remand the patient back to Whiting's Maximum Security Service or to permit the patient to remain at Dutcher. (Id.) If the patient remains at Dutcher, the PSRB cannot set the pass level. (Id.)

         At the time of the filing of his motion, Dyous had only a Level 3 pass, which permits trips into the community with staff supervision. (Id.) Dyous had twice requested a Level 4 pass, but both applications were denied. (Id.) The Medical Director of Whiting represents that the most recent request was denied because Dyous “needed to demonstrate greater and consistent safety in the community by making additional trips into the community with staff on his level 3 pass.” (Id.) By June 2019, and after the filing of the instant motion, Dyous “had several community trips in which he demonstrated such behavior that his treatment team and the [Forensic Review Committee]” supported a Level 4 pass. (Id.) Because the PSRB had requested to be informed in advance of Whiting's intention to grant Dyous a Level 4 pass, Whiting informed ...