United States District Court, D. Connecticut
WILLIAM ROE, et al., on behalf of themselves and all others similarly situated Plaintiffs,
v.
MICHAEL HOGAN, et al. Defendants.
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 ...