Appeal from the United States District Court for the Western District of Wisconsin. No. 99-C-580-C--Barbara B. Crabb, Chief Judge.
Before Posner, Ripple, and Evans, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge.
A Wisconsin law, part of what we will call Chapter 980, defines a sexually violent person as one "who has been convicted of a sexually violent offense . . . and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." Wis. Stat. sec. 980.01(7). Among other brushes with the criminal law, Richard Thielman was convicted of second degree sexual assault for an incident involving a minor boy back in 1987. In 1989 Thielman pled guilty to another charge of second degree sexual assault (stemming from an incident preceding his incarceration on the 1987 conviction), again involving a minor boy, this time his son. As Thielman's criminal sentence neared its completion, the State initiated proceedings to have him declared a sexually violent person under Chapter 980. A court so adjudicated him and he was "committed to the custody" of the Department of Health and Family Services "for control, care and treatment until such time as [he] is no longer a sexually violent person." Wis. Stat. sec. 980.06(1). The finding that he was a sexually violent person was supported, as it must be under the Wisconsin law, by proof beyond a reasonable doubt.
Thielman was assigned to the Wisconsin Resource Center (WRC), a medium-security facility housing persons committed under Chapter 980 along with regular inmates, most of whom have mental problems. Thielman, who is now 63 years old, suffers from numerous health problems. His condition requires that he be transported from the WRC (on an average of three times a month, it would appear) for outside medical treatment. The WRC operates under a policy, developed by the Department of Corrections, which says"Inmates shall be placed in full and double-locked restraints, chain-belt-type waist restraints with attached handcuffs, security Blackbox, and leg restraints." Thielman challenged this policy and a handful of others, but all his claims were dismissed, on the State's motion, by Judge Barbara B. Crabb in the district court. This appeal involves Thielman's claims under 42 U.S.C. sec. 1983 that WRC's transport policy violates his rights to procedural due process and equal protection of the laws under the Fourteenth Amendment. He seeks declaratory and injunctive relief. We review the issues of law de novo.
We note at the outset that since this appeal was filed Thielman has been transferred from the WRC to the Sand Ridge Secure Treatment Center, which now houses all Chapter 980 patients. According to Thielman, the issues before us are "unaffected by this change." The State has not argued that Thielman's transfer moots this appeal, presumably because Thielman is subject to a similar transport policy or perhaps he could be returned to the WRC. Accordingly, we reach the merits.
Thielman first claims that WRC's transport policy violates his right to procedural due process because the State has deprived him of a liberty interest without an individualized determination as to whether he poses a danger or escape risk when he is taken from the facility. The State concedes that no individualized determination is made, so we look to the predicate question of whether Thielman has a liberty interest in not being subjected to WRC's restraint policy. Shango v. Jurich, 681 F.2d 1091, 1097 (7th Cir. 1982).
Liberty interests can arise from two sources: the Federal Constitution or state law. Id. Thielman claims a liberty interest deriving from state law. In the district court, Thielman cited sec. 51.61(1)(i)(1) of the Wisconsin Statutes, a provision of the State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act dealing with patients' rights. That section provides mental patients, including Chapter 980 patients, with "a right to be free from physical restraint and isolation except for emergency situations or when isolation or restraint is a part of a treatment program." Wis. Stat. sec. 51.61(1)(i)(1). Prior to August of last year, that section also stated: "Patients who are committed or transferred under s. 51.35(3) or 51.37 or under ch. 971 or 975 may be restrained for security reasons during transport to or from the facility." Id. Because this statutory language fails to mention Chapter 980 patients, Thielman argues that it requires that he be free from restraints during transport. Reliance on that argument took a hit when, while this appeal was pending, the Wisconsin Legislature amended sec. 51.61(1)(i)(1) to include Chapter 980 patients in the class of patients that could be restrained during transport to and from the facility. 2001 Wis. Act 16, sec. 1993r.
The State argues that the amendment moots Thielman's claim that he has a state-created liberty interest in not be ing restrained. Wrong. Even if Thielman's claim was based on sec. 51.61(1)(i)(1) alone, the amendment would not eliminate the "controversy" at issue--whether WRC's policy violates Thielman's right to procedural due process. It would just dictate how that controversy should be resolved. In light of the amendment, it is plain that Thielman no longer has a state-created liberty interest in being free from restraint during transport.
But Thielman's challenge is not based on sec. 51.61(1)(i)(1) alone. He also points to sec. 51.61(1)(e), which provides that "[e]xcept in the case of a patient who is admitted or transferred under s. 51.35(3) or 51.37 or under ch. 971 or 975," patients shall have "the right to the least restrictive conditions necessary to achieve the purposes of admission, commitment or protective placement, under programs, services and resources that the county board of supervisors is reasonably able to provide . . . ." He also cites former sec. 980.06(2)(b) of the Wisconsin Statutes, which directs that the Wisconsin Department of Health and Family Services "shall arrange for control, care and treatment of [a sexually violent] person in the least restrictive manner consistent with the requirements of the person and in accordance with the court's commitment order." Section 980.06(2)(b) was repealed in 1999, see 1999 Wis. Act 9, sec. 3223(j), but the repeal did not apply to commitment orders entered prior to October 29, 1999. Thielman was committed in April 1996. He notes that although the Wisconsin Legislature amended sec. 51.61(1)(i)(1), it did not touch sec. 980.06(2)(b) (presumably with respect to those whose its repeal did not affect) nor add Chapter 980 patients to the class of patients exempted from coverage under sec. 51.61(1)(e). Therefore, he still claims a right to the "least restrictive conditions of confinement." He argues that WRC's restraint policy, which mandates leg chains and a waist belt, deprives him of this narrower liberty interest.
Thielman's argument raises questions requiring a look at two Wisconsin statutes, one of which has been repealed and another which was recently amended. In order to determine if sec. 51.61(1)(e) or sec. 980.06(2)(b) provides Thielman with a liberty interest, we would have to analyze whether either section was intended to apply to the transport of patients, a contingency that appears to be covered more directly in sec. 51.61(1)(i)(1). If so, we would then have to consider whether and how the amendment to sec. 51.61(1)(i)(1) did or did not alter the meaning of the other sections. We would navigate this thicket without direct guidance from Wisconsin's appellate courts.
We need not unravel these state statutory mysteries, however, because any inquiry would be much ado about nothing. Federal precedent indicates that, even granting Thielman the premise of his argument that sec.sec. 51.61(1)(e) and 980.06(2)(b) give him a state-created right to the least restrictive conditions of confinement during transport, they do not provide a liberty interest cognizable under the Fourteenth Amendment. In Sandin v. Conner, 515 U.S. 472 (1995), a prisoner claimed that a prison regulation gave him a liberty interest that was infringed when he was sent to segregated confinement for disciplinary reasons. The prison regulation stated that with regard to prison disciplinary proceedings, "[a] finding of guilt shall be made where . . . [t]he charge is supported by substantial evidence." Id. at 477 n.3. The petitioner argued that, in the absence of a finding of substantial evidence, he could not be subjected to disciplinary confinement.
The Court reviewed and reconsidered its earlier cases on state-created liberty interests, in particular Hewitt v. Helms, 459 U.S. 460 (1983). In Hewitt, the Court had held that prison regulations could give rise to liberty interests if the language of the regulation contained "mandatory" language that an incursion of liberty would not occur absent substantive predicates. Id. at 471-72. Sandin refocused the inquiry on the "nature" of the deprivation at issue. 515 U.S. at 483-84. The Court held that a state could not create a liberty interest unless the right provided freedom fromrestraint that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Because the Court would no longer find liberty interests in the "negative implications" of prison regulations, and the confinement in Sandin did not differ materially from the conditions of administrative confinement at the same prison (to which any inmate could be subject), any deprivation the petitioner suffered was not "atypical and significant" in relation to the "ordinary incidents" of his prison life. Id. at 484-86.
Two concerns motivated the Court's holding. First, it was hesitant to find liberty interests in "negative implications" of prison regulations because it did not want to discourage states from writing such regulations, which are designed to curb the discretion of prison officials. Id. at 482. Thisconcern is not implicated in Thielman's case because he does not claim rights under a prison regulation. He claims a right under a provision in the State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act that specifically deals with "Patients Rights" and under a provision in Wisconsin's sexually violent person commitment statute itself. Finding liberty ...