U.S. Court of Appeals, Seventh Circuit
March 04, 2002
RICHARD THIELMAN, PLAINTIFF-APPELLANT,
JOSEPH LEEAN, LAURA FLOOD, JERRY BEDNAROWSKI, DIANE FERGOT, MARGARET ALEXANDER, ANNA SALTER, BYRAN BARTOW, JON LITSCHER, AND JAMES DOYLE, DEFENDANTS-APPELLEES.
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.
Argued November 2, 2001
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 interests in these places does not undermine the State's intent of governing institution officials; it effectuates the State's intent of providing patients with rights.
But this difference is inconsequential. Although we have on occasion wondered what language can create liberty interests after Sandin, see Barichello v. McDonald, 98 F.3d 948, 954-55 (7th Cir. 1996), nothing in Sandin precludes states from supplying language that confers rights. The Supreme Court itself stated: "[W]e recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin, 515 U.S. at 483-84. The more relevant question is what "certain circumstances" must exist before language conferring state rights can translate into federal liberty interests.*fn1
Which brings us to the Court's second concern. The approach that Sandin rejected involved federal courts in the "day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at 482. In Sandin, the Court sought instead to "afford appropriate deference and flexibility to state officials trying to manage a volatile environment," especially with regard to "the ordinary incidents of prison life." Id. at 482-83. Accordingly, it articulated a minimum standard for recognizing the kind of deprivation that could trigger federal procedural protection.
Again, Thielman's case differs slightly. Just as Sandin dealt with prison regulations, it also dealt with a prison and a prisoner. Although the WRC, in part, houses correctional inmates, it cannot be termed a prison with regard to Chapter 980 patients. The entire premise of Wisconsin's sexually violent person commitment scheme is that a patient is not confined as punishment for his earlier criminal behavior. Otherwise, the confinement scheme would run afoul of the double jeopardy provision.*fn2 Nonetheless, facilities dealing with those who have been involuntarily committed for sexual disorders are "volatile" environments whose day-to-day operations cannot be managed from on high. Cf. Youngberg v. Romeo, 457 U.S. 307, 321-24 (1982) (extending "professional judgment" standard to substantive due process claim brought by involuntarily committed mental patient and noting that such a presumption was "necessary to enable institutions of this type--often, unfortunately, overcrowded and understaffed--to continue to function"). Moreover, even though Thielman is not formally a prisoner, his confinement has deprived him (legally) of a substantial measure of his physical liberty. Sandin teaches that any person already confined may not nickel and dime his way into a federal claim by citing small, incremental deprivations of physical freedom. Sandin's reasoning applies with equal force to persons confined under Chapter 980.*fn3 In order to state a procedural due process claim deriving from state law, Thielman must identify a right to be free from restraint that imposes atypical and significant hardship in relation to the ordinary incidents of his confinement.
Although the deprivation at issue is to be measured against the "ordinary incidents" of his civil confinement, as opposed to the conditions of criminal incarceration, cf. Youngberg, 457 U.S. at 321-22 (noting that "[p]ersons who have been involuntarily committed are entitled to more considerate . . . conditions of confinement than criminals whose conditions of confinement are designed to punish"), we need not consider the details of Thielman's daily existence because his deprivation has been sharply focused by the statutory rights at issue and by Thielman's own particular complaints. Because of the amendment to sec. 51.61(1) (i)(1), Thielman no longer can claim that the statute provides him a liberty interest in being free from physical restraint during transport. Rather, he is relegated to a liberty interest in the "least restrictive conditions of confinement," as (we will assume) provided by sec.sec. 51.61(1)(e) and 980.06(2)(b). In practical terms, we were told during oral argument that Thielman does not object to the use of handcuffs but does not care one bit for the use of a waist belt and leg chains. This is the stuff of nickels and dimes. The added restraints of a waist belt and leg chains are not "atypical" and "significant" hardships in relation to Thielman's confinement, which, without even considering his overall environment, involves the use of handcuffs during transport. This "incremental" deprivation is not one cognizable as a state-created liberty interest in the wake of Sandin.*fn4
Thielman next challenges WRC's restraint policy on equal protection grounds. In his brief, Thielman mounted a Yick Wo challenge--the discriminatory application of a facially neutral statute--to WRC's restraint policy. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). He claimed that sec. 51.61(1) (i)(1) provided both Chapter 51 patients and Chapter 980 patients with the right to be free from restraint during transport. (Chapter 51 of the Wisconsin Statutes details the "standard" method of committing someone involuntarily to a mental hospital.) Because WRC's policy subjected Chapter 980 patients to full restraints, he argued, it illegally discriminated against them. The amendment to sec. 51.61(1)(i)(1) has changed this song's tune in two ways. First, it has codified the distinction between Chapter 51 and Chapter 980 patients with regard to the right to be free from restraint during transport. Accordingly, this portion of Thielman's Yick Wo argument is now just a standard statutory challenge. Second, because sec. 51.61(1)(e) purportedly provides patients a right to the least restrictive conditions of confinement, Thielman's Yick Wo challenge now focuses on WRC's denial of this narrower right.
We deal first with Thielman's statutory argument. Judge Crabb in the district court found that any classification between Chapter 51 patients and Chapter 980 patients did not implicate a suspect class and did not infringe a fundamental right. Thielman has not challenged these rulings. Accordingly, he is relegated to the rational basis test. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). "A court will not disturb the law as long as it is rationally related to a legitimate government interest." Scariano v. Justices of the Supreme Court of Ind., 38 F.3d 920, 924 (7th Cir. 1994). The State argues that the dangerousness of Chapter 980 patients warrants their restraint during transport. Although the involuntary commitment of a person under Chapter 51 can be accomplished by showing, among other things, a "substantial probability of physical harm" to the patient or others, Chapter 980 patients have a previous conviction (or acquittal based on their mental condition) to evidence their dangerousness. Moreover, as the State points out, they are subject to indefinite commitment, heightening their desire to escape. Last, it is not unreasonable for the State to believe that a person with a mental disorder of a sexual nature is qualitatively more dangerous than another mental patient who nonetheless threatens danger to himself or others. Accordingly, Wisconsin has a rational basis for drawing distinctions between Chapter 980 and Chapter 51 patients with regard to the use of restraints.
Thielman's reconfigured Yick Wo challenge also fails. The question here, assuming that sec. 51.61(1)(e) or sec. 980.06(2)(b) provides a right to the least restrictive conditions of confinement, is whether the WRC disregarded the right in a discriminatory fashion. This seems like a strange claim in light of the fact that Thielman is challenging WRC's policy, yet there is no evidence in the record that the WRC houses Chapter 51 patients. In other words, the WRC policy does not classify at all between Chapter 51 and Chapter 980 patients.*fn5 Even assuming it did, however, for the reasons we have discussed, the WRC could rationally provide less restrictive restraints to Chapter 51 patients than it provides to Chapter 980 patients. Moreover, Mario Canziani, security director at the WRC, stated in his affidavit that the WRC has referred for prosecution at least six cases of battery by Chapter 980 patients since 1998. Moreover, in 1998 one patient escaped during transport and abducted a child. The fact that the WRC may have violated state law by treating Chapter 980 and Chapter 51 patients differently adds nothing to Thielman's federal equal protection claim. Muckway v. Craft, 789 F.2d 517, 521-23 (7th Cir. 1986) (holding that a state's failure to enforce its own law does not give rise to an equal protection claim unless the state's action denies a federal right).
For all these reasons, the district court was correct to award the appellees summary judgment on Thielman's due process and equal protection claims. This is not to say, however, that a rigid transportation restraint policy for all Chapter 980 patients is to be applauded. It might be better to treat older, more infirm patients (recall, Thielman is in his sixties and his medical condition--apparently he has prostate cancer, hypertension, heart disease, and some degenerative disease of his spine and right knee--is serious) differently. But the challenged policies are not unconstitutional, and so the judgment of the district court is AFFIRMED. The State's motion to dismiss this appeal as moot is DENIED.