Opinion
Nos. 98-2523B, 98-3082B
July 16, 2001.
MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs in these consolidated actions have been civilly committed to the Massachusetts Treatment Center as sexually dangerous persons under G.L. c. 123A. Plaintiffs seek a declaratory judgment that the defendant Department of Correction ("DOC") officials are in violation of St. 1990, c. 150, § 104 because they fail to keep plaintiffs "separate and apart" from State prison inmates at all times. Plaintiffs also ask that defendants be enjoined from future violation of that statute. The matter previously came before the court on defendants' motion for summary judgment. In that decision, I ruled that the "separate and apart" provision of § 104 was not repealed by implication by later amendments to G.L. c. 123A, and that certain Federal and State litigation did not bar this action under principles of res judicata. Mem. and Order Jan. 21, 2000. The matter is now before the court on cross motions for summary judgment. After a hearing, for the reasons discussed below, the cross motions are each ALLOWED in part and DENIED in part. A declaration shall enter that defendants are in violation of St. 1990, c. 150, § 104. Plaintiffs' request for injunctive relief is DENIED .
BACKGROUND
The undisputed facts in the then-existing summary judgment record were set forth in my Memorandum and Order on defendants' first summary judgment motion. I supplement those undisputed facts with those since added to the record. I repeat facts from the prior decision only where necessary.
The Massachusetts Treatment Center (the "Treatment Center") currently houses two populations, all male: (1) persons held under G.L. c. 123A ("residents") and (2) State prison inmates ("inmates"). Residents include (1) those adjudicated sexually dangerous persons ("SDPs") and civilly committed for an indeterminate period under the prior c. 123A (which was repealed in 1990, see St. 1990, c. 150, § 304) and (2) those convicted of a sexual offense delineated under the current c. 123A who are held under various provisions of that statute for evaluation or to await adjudication. The inmates are males incarcerated for committing sexual crimes who volunteer to participate in the sex offender treatment program at the Treatment Center. Inmates are not civilly committed under c. 123A but, upon discharge, may be the subject of a petition under c. 123A. All plaintiffs have been adjudicated as SDPs.
This subgroup, in turn, consists of those civilly committed without a criminal sentence, those who remain committed after the expiration of a criminal sentence and those who, to use defendants' words, have criminal sentences "concurrent" with their c. 123A commitment. As noted below, none of the plaintiffs is currently under a criminal sentence.
Before repeal of many of its provisions in 1990, c. 123A permitted the indeterminate commitment of SDPs to the Treatment Center. Sections 104 and 304 of St. 1990, c. 150 prohibited further SDP commitments. Section 104 provides:
In accordance with the provisions of [St. 1990, c. 150, § 304], no person shall be newly committed to the [T]reatment [C]enter for sexually dangerous persons or to any branch thereof under the provisions of [G.L. c. 123A] on or after [September 1, 1990]; provided, however, that all persons committed to said [T]reatment [C]enter, as of said date, pursuant to an order of commitment issued prior to said date, shall be maintained at said [T]reatment [C]enter subject to provisions of [c. 123A]; provided, further, that upon a determination by the commissioner of correction and the commissioner of mental health that space within the [T]reatment [C]enter has become available due to a decline in patient population, the commissioner of correction may utilize such space for the purposes of addressing overcrowding at facilities under his control or addressing any special correctional needs of the inmate populations at such facilities; provided, however, that upon the utilization of available space by the [DOC], [T]reatment [C]enter patients shall at all times remain separate and apart from [DOC] inmates; and provided further, that the commissioner of correction shall develop a plan for a program of voluntary treatment services for sex offenders to be offered in facilities operated by the [DOC].
St. 1990, c. 150, § 104.
At the time of the 1990 legislative action, management of the Treatment Center was shared by the Department of Mental Health ("DMH") and the DOC. In 1994, the Legislature amended c. 123A, § 2 effectively to place authority over the Treatment Center with the DOC. St. 1993, c. 489. This shift prompted the DOC to seek vacatur or modification of certain consent decrees which had been entered in Federal litigation pertaining to the Treatment Center. Under the Federal litigation, which had been commenced in 1972, the local Federal district court issued a consent decree (the "Original Decree"). Under the Original Decree, the Treatment Center would be treated as a DMH facility, with primary authority exercised by the DMH, and with custodial personnel provided by the DOC. Residents of the Treatment Center were to have "the least restrictive conditions necessary to achieve the purpose of commitment." King v. Greenblatt, 149 F.3d 9, 11 (1st Cir. 1998) (" King III"). In support of its motion to modify the Original Decree by substituting itself for the DMH as the agency with primary responsibility over the Treatment Center, the DOC submitted a 138-page management plan (the "Management Plan") to the Federal court. The Management Plan "sets forth policies for management and staffing, clinical treatment, educational and vocational treatment, behavior management, resident management operations, community access, and the integration of the [Treatment] Center with the prison's program for sex offenders." King v. Greenblatt, 127 F.3d 190, 193 (1st Cir. 1997) (" King II"). The Management Plan described how the DOC aspired to fulfill the requirements of the Original Decree. King III, 149 F.3d at 15. After consideration, the Court of Appeals for the First Circuit held that shift in control of the Treatment Center to the DOC in and of itself did not appear likely to undermine the Original Decree or violate the Federal Constitution. Id. at 19. The Management Plan "justifies some reduction in [certain] privileges because of past experiences with security, assault, gambling, coercion, and interruptions in treatment." Id.
Thus, in the end, the DOC assumed sole authority over the Treatment Center with continued Federal oversight. See King v. Greenblatt, 52 F.3d 1 (1st Cir. 1995) (" King I"); King II, 127 F.3d 190; King v. Greenblatt, 53 F. Supp.2d 117 (D.Mass. 1999) (" King IV"). The oversight included the filing of 15 monthly reports by the DOC to the Federal court, to enable that court to observe the DOC's ability to implement the treatment program in the Management Plan. King IV, 53 F. Supp.2d at 123 n. 12. The Federal court issued memoranda summarizing and commenting upon these monthly reports. Exs. V1-V14 to Aff. of Daniel A. Less (dated Aug. 25, 1998), bound in Volume II of Consolidated Exhibits in Support of Defendants' (First) Motion for Summary Judgment.
In June 1999, the Federal district court terminated the consent decrees, leaving the Management Plan as the enforceable operating document governing the DOC's responsibilities vis-a-vis the Treatment Center. King IV, 53 F. Supp. at 136-37. When terminating the consent decrees, the Federal district court (Mazzone, J.) stated:
Clearly, the presence of 360 DOC inmates, and the possibility that more will be sent to the Treatment Center as space becomes available has an effect and in some circumstances, an adverse [e]ffect. And I understand that there may be issues arising out of the administration of the [Management] Plan in the future if [the] DOC becomes indifferent to its responsibilities both under the statute and the [Management] Plan to keep residents separate and apart from inmates. If ignored, the [Management] 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.
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. [P]laintiffs remain "free to initiate a new round of proceedings designed to show that post-termination conditions actually do violate their federally protected rights." [ Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir. 1997)].
Id. at 136, 137.
Defendant Michael Maloney has been Commissioner of Correction since August 1997 and beginning July 1989 was Deputy Commissioner. In his affidavit, Maloney states that as a result of the 1990 termination of the c. 123A commitment process, the DOC implemented a policy of delivering voluntary sex offender treatment services to inmates. These services were provided in certain correctional facilities. In 1992, the Justice Resource Institute ("JRI") contracted to deliver treatment services to inmates at correctional facilities, as well as to residents at the Treatment Center (then managed by the DMH). Aff. of Michael T. Maloney (dated Mar. 23, 2001) at pars. 1-6.
After the DOC assumed full authority over the Treatment Center, it began to expand its treatment program for sex offending inmates, who, Maloney says, represent one of the largest growing offense groups in the DOC population. The DOC consolidated most of the sex offender treatment programs at the Treatment Center and dismantled some programs at other facilities. Those other facilities could not be expanded because of limited space and resources. Besides the availability of space, there existed other reasons for consolidating treatment programs at the Treatment Center. The Treatment Center was a "therapeutically rich environment" with a staff and management structure in place. In addition, the homogenous nature of the population (i.e., all were sex offenders) provided an environment which would assist treatment. It appears that mere presence of another population was another reason supporting consolidation at the Treatment Center. Lack of new members made the SDP population "therapeutically stagnant." Thus, it was thought that increasing the population would make the SDP population "energized and more motivated to engage in treatment." Also, it was thought that if a new group of sex offenders volunteered to engage in treatment, residents would then be spurred also to engage in treatment. Finally, the two populations were very similar — each was all male, would benefit from identical services and treatment programs and half the existing resident population was still serving criminal sentences in conjunction with their civil commitment. Thus, residents not serving a criminal sentence had been interacting with residents who were serving criminal sentences simultaneously with their civil commitment. Maloney Aff. at pars. 7-8.
The resident population at the Treatment Center was declining after 1990.
While the DOC was aware of St. 1990's requirement that inmates and residents be kept "separate and apart" at all times, the DOC determined that it could lawfully introduce inmates convicted of sexual offenses into the Treatment Center if it housed inmates in a different unit but permitted the populations to interact in common areas. The DOC reasoned that St. 1990, c. 150, § 104 was not made part of the General Laws, was enacted when SDP civil commitment was repealed and when the DMH shared responsibility over the Treatment Center with the DOC, and the DOC has "broad discretionary powers" to operate the correctional facilities. In addition, the DOC believed that residents would remain entitled to the rights and privileges contained in the Federal litigation Management Plan even if inmates were introduced to the Treatment Center. Finally, the DOC had managed other dual populations in DOC facilities in a similar manner despite a statutory mandate that a population be housed and treated separately. Thus, the DOC believed it could lawfully bring inmates to the Treatment Center if inmates and residents were housed in separate units, residents received priority and greater access to treatment, recreational, educational, rehabilitational and other services and residents received accommodations and privileges as described in the Management Plan. In addition, inmates who harassed, assaulted or otherwise victimized a resident would be subject to discipline and terminated from the sex offender treatment program. Maloney Aff. at pars. 9-15. See King IV, 53 F. Supp.2d at 122.
Inmates were placed at the Treatment Center in two steps. In the first step in March 1996, inmates were relocated to the D2 housing unit at the Treatment Center. Inmates and residents were not permitted to enter the other's housing unit, but they used other facilities together: hallways and corridors, library, educational and rehabilitational programs, gymnasium and exercise yard, dining room, health service unit, and attended religious services together. They also attended some treatment programs together. In the second step, a 300-bed Modular Unit was constructed to house inmates. Maloney Aff. at pars. 16-17.
In 1999, the Legislature amended c. 123A again to provide for civil commitment. To make room for the anticipated influx of residents, inmates housed in the D2 unit were moved to the Modular Unit. There are now about 300 inmates at the Treatment Center, about 167 civilly committed residents and about 74 temporarily committed residents. While housed separately, these populations intermingle in common areas and participate together in various programs and services. The civilly committed residents receive more privileges and accommodations than the inmates. Maloney Aff. at par. 20.
Chapter 123A, § 16 requires the Treatment Center to submit by December 12, 1999 "its plan for the administration and management of the [T]reatment [C]enter. The [T]reatment [C]enter shall promptly notify [specified] committees of any modifications to said plan." In 1999 and 2000, Maloney submitted reports to the Legislature. The 1999 report informed the Legislature:
[I]nmates at the Treatment Center are housed separate and apart from the civilly committed residents. The two populations are given the opportunity to intermingle in the common areas of the Main Facility for program purposes (e.g.[,] gym, yard, Learning Center, Inmate Dining Room, Health Services Unit, library, etc.). Also, as stated above, because of the nonpunitive and rehabilitative nature of the residents' SDP commitment, residents receive priority in sex offender specific treatment, rehabilitational, vocational, employment, recreational, education, and other program services offered at the Treatment Center. King[v. Greenblatt, 53 F. Supp.2d 117, 129-30 (D.Mass. 1999)]. Residents are permitted to sign up first for these programs during registration periods. Moreover, to ensure that residents have priority in the Learning Center, library, gym, and yard, they are permitted to leave their housing units before inmates so that they may arrive at these activities ahead of inmates. Id. at 134-35.
The blending of the two populations has had an overall positive effect on the facility. Since the inmates' arrival in the facility in 1996, therapists have noticed a new vitality among the inmates and residents and a recommitment to treatment objectives. King, 53 F. Supp.2d at 131.
Finally, as stated above, any inmate who does not participate in treatment, fails to progress in treatment, or is a disruptive force to the therapeutic setting at the facility is reclassified out of the facility.
Plan for the Administration and Management of the Massachusetts Treatment Center for Sexually Dangerous Persons (Dec. 10, 1999) at 30 (Ex. AA to Maloney Aff.) (hereafter "1999 Report"). The 2000 report also acknowledges that inmates as well as residents receive treatment at the Treatment Center. Annual Report of the Massachusetts Treatment Center for Sexually Dangerous Persons (Nov. 1, 2000) at, e.g., 6 7 n. 3 (Ex. BB to Maloney Aff.). According to Maloney, the "DOC has not received any inquiry, criticism, or complaint that its present practice of housing and treating its Treatment Center population is unlawful or improper." Maloney Aff. at par. 22.
As noted, attached to the Maloney Affidavit are copies of the 1999 Report and the 2000 update. Defendants, without objection from plaintiffs, draw from this to describe the physical structure of the Treatment Center.
The Treatment Center consists of three main buildings located within a secure, fenced perimeter: the Main Facility, the Modular Unit and the Community Transition House. The Main Facility consists of eight housing units: A1, A2, B1, B2, C1, C2, D1 and D2. It also contains the Inmate Dining Room, the Health Services Unit, the general library, the law library, barber shop, gymnasium and exercise yard and the Learning Center (which provides educational classrooms, computer training, music, art, sewing, woodwork, graphic arts and a print shop). These units in the Main Facility, except for D1 and D2, house residents committed before the 1990 repeal of civil commitment. Units D1 and D2 house residents temporarily committed under the newly revised c. 123A. No inmates reside in the Main Facility. 1999 Report at 6-7. Maloney Aff. at par. 20.
The Modular Unit is a freestanding structure, detached from the Main Facility. It consists of four housing units, each holding 75 inmates, with a maximum capacity of 300 inmates. All inmates at the Treatment Center reside in the Modular Unit, and only they may enter. Residents are not permitted to enter the Modular Unit. Inmates are housed in a dormitory setup, with as many as six per room sharing a separate common bathroom. Inmates have access to the Main Facility to use common areas, such as the Inmate Dining Room, Health Services Unit, library, gymnasium, yard and Learning Center; there, they may intermingle with residents. 1999 Report at 6-7.
The Community Transition House is a three-story white house 50 yards from the Main Facility. Only certain residents, approved for a lower security program, may enter and reside there. Residents allowed to reside there have more privileges and fewer restrictions than other residents and than inmates. 1999 Report at 6-7.
Before the Modular Unit was constructed, certain residents of the Treatment Center sought injunctions in Federal and State courts to prevent construction. King v. Greenblatt, No. 72-788 (D.Mass. Mem. and Order dated Sept. 30, 1996). Miller v. Dubois, No. 97-P-338 (Mass.App.Ct. Mem. and Order Pursuant to Rule 1:28 dated June 3, 1998). In the State case, the residents alleged, among other things, that St. 1990, c. 150, § 104 would be violated by construction. The administration of the Treatment Center developed a plan, with input from JRI, to ensure that residents continued to receive treatment and other programs and services, and to give residents first priority to the programs and services available to both residents and inmates. Aff. of James T. Walsh (dated Aug. 2, 1996) at par. 6. That plan, titled Massachusetts Treatment Center Management Plan to Accommodate 300 New State Prison Inmates, states that its purpose is to expand the Statewide sex offender treatment program available to inmates, relieve overcrowding and take advantage of underused facilities at the Treatment Center. The plan discusses feeding additional modular inmates, visiting ability, clinical and therapeutic treatment, academic and vocational education, recreation and library use. With respect to treatment, the plan states that services will be provided to inmates by JRI. This would be done by expanding the JRI contract and creating new positions rather than by reallocating existing JRI staff. With respect to education, the plan states that residents will continue to have priority, and the addition of 300 inmates would not affect the availability of educational classes to residents. Ex. A to Walsh Aff. The Federal court considered this plan. Both the Federal and State courts denied injunctive relief. The Modular Unit opened in the Spring of 1997, and 300 inmates were transferred there to participate in sex offender treatment. Maloney Aff. at par. 17.
Plaintiffs are residents of the Treatment Center. Each was civilly committed to the Treatment Center under former provisions of G.L. c. 123A, for one day to life, before the 1990 statute was enacted. No plaintiff is currently serving a criminal sentence for his sex offense conviction. In each case, either the criminal sentence has expired or the civil commitment was in lieu of a criminal sentence.
In the record are a number of affidavits from plaintiffs and others. Plaintiff Chapman states that the intermingling of inmates and residents has impacted all areas of Chapman's life, "including mentally, emotionally, physically and in terms of [Chapman's] ability to feel safe and secure." He states that inmates "bring a much tougher mentality" to the Treatment Center. Before inmates were introduced to the Treatment Center, the residents experienced a sense of community, which evaporated with the introduction of the inmates. Whereas before Chapman felt safe and able to become vulnerable by sharing aspects of his crime and life with other residents, he no longer feels safe or comfortable sharing personal information if too many inmates are present. Those inmates' attitudes prevent Chapman from doing so. Chapman believes the inmates have negatively affected his treatment progress. Aff. of Wayne S. Chapman (dated May 23, 2000).
Plaintiff Durfee states that since inmates were introduced to the Treatment Center, the institution "feels more threatening" and Durfee "feel[s] the need to be more guarded and less open." "[T]he attitude of the staff seems more orientated [ sic] to correction and less toward treatment, and no meaningful distinction is made in the daily treatment of the civilly committed and the prisoners. Prisoners have made derogatory comments to [Durfee] about [his] status; the inmates are more aggressive, and attempt to be demeaning and intimidating; there are more fights and confrontations since the inmates have been introduced." Aff. of Francis Durfee (dated May 23, 2000).
Plaintiff Richlin states that inmates project the attitude that they are much better than residents. Also, at times inmates are in Richlin's housing unit for about an hour unattended, freely roaming the unit, and Richlin feels this jeopardizes his safety. Aff. of Richard D. Richlin (dated June 6, 2000).
Plaintiff Daignault describes an incident that took place in the dining room on April 8, 1999. Daignault confronted an inmate who was receiving a portion of food larger than with Daignault's. The inmate made a comment such as, "You fucking civil, who are you?" Daignault received a disciplinary report while, he says, the inmate did not. Daignault states that since inmates were placed at the Treatment Center, Daignault's confinement has become increasingly punitive. Aff. of Michael Daignault (dated June 24, 1999).
Plaintiff Vasquez states that since the introduction of inmates at the Treatment Center he has "experienced a change in the atmosphere and climate of the center." He states that in 1998, an inmate started fighting with him and, as a result, both were locked up in the minimum privilege unit, with no meaningful difference in conditions between them. Vasquez states that he anticipates that any adverse reports he receives, such as for fighting, will be used against him in any hearing pertaining to his discharge from the Treatment Center. Thus, intermingling of residents and inmates has negative consequences for him. Aff. of Wilfredo Vasquez (dated July 2, 1999).
A June 21, 1999 affidavit of plaintiff Rodriquez (whose name is spelled a number of different ways in the record) discusses the conditions of his confinement at the Treatment Center. Rodriquez states that, since he filed a civil action against correction officers for excessive force, his treatment has been punitive and the officers have retaliated against him. The issue in this case is whether the defendants are in violation of St. 1990, c. 150, 104. The broader issue of whether residents' conditions of confinement in effect constitute punishment as opposed to treatment is not before me. Similarly, the narrower issue of whether prison staff are retaliating against Rodriquez is also not before me. A June 24, 1999 affidavit of plaintiff Seward contains a list of instances where he was denied certain items of clothing or permission to attend classes or the law library. The affidavit does not state how this relates to the presence of inmates at the Treatment Center. A December 23, 1998 affidavit of Louis DeSousa, presumably a Treatment Center resident, details how he was treated on one occasion in December 1998 when he went to the doctor for stomach discomfort. The affidavit does not state how this relates to the presence of inmates at the Treatment Center.
Another affidavit in the record is of Ronald DeWolfe, not a plaintiff but a Treatment Center resident. DeWolfe states that inmates are hostile toward residents, saying that residents are "the sick [ sic] of the sickest." Aff. of Ronald J. DeWolfe (dated May 23, 2000).
The affidavit of Stephen Smith states he is a Treatment Center resident without an outstanding criminal sentence to be served. Smith states that on June 19, 1999, he was punched by an inmate in the gym, but did not retaliate or exchange punches with the inmate. Smith was taken to the segregation unit and was released two days later, when he was found not to have precipitated the altercation and not to have retaliated. Smith opines that the result of intermingling of residents and inmates is to lengthen the duration of residents' commitment because, while inmates who violate the rules will suffer loss of good time, residents will not but will feel the results of any perceived infraction when they petition for release from confinement. Aff. of Stephen Smith (dated June 24, 1999).
The affidavit of Larry Davis states that he is a Treatment Center resident. According to the affidavit and the supporting documents, on April 29, 1999, Davis was denied a $99 check he received from Annett Silva. The stated reason for the denial was, "not allowed money from another inmates family." The decision on an appeal to the deputy superintendent of operations states, "Sender is a relative of another inmate at another institution." Aff. of Larry Davis (dated June 24, 1999).
Also in the record are documents titled "Community Access Board Annual Review/Section 9 Update." The report regarding plaintiff Chapman (dated Aug. 22, 2000) details Chapman's treatment history at the Treatment Center. A review of this history from 1992 to 2000 does not reveal any significant change in his treatment progress related to the introduction of inmates to the Treatment Center. Chapman Report at 10-27. The report (dated May 9, 2000) regarding plaintiff Durfee similarly reveals no significant change in progress. Durfee Report at 9-15. Finally, the report (dated Feb. 15, 2000) regarding plaintiff Richlin does not reveal significant change. Richlin Report at 6-19. Introduction of inmates to the Treatment Center is not mentioned in these reports. Richlin Report at 8.
DISCUSSION
The issues relevant to these cross motions for summary judgment are significantly narrowed by my prior decision. There, I ruled that St. 1990, c. 150, § 104 was not repealed by implication by St. 1993, c. 489, § 2, which amended G.L. c. 123A. I do not revisit that holding. None of the undisputed facts added to the record change the result. While defendants argue that lack of legislative objection to the current treatment of residents and inmates signifies approval, that is not necessarily the case. Lack of objection to the 1999 Report (and 2000 update) may indicate disapproval, assuming members of the Legislature read the reports. There has been no legislative movement to repeal expressly St. 1990, c. 150, § 104. Inaction does not repeal a statute of indefinite duration. My earlier ruling stands.
Plaintiffs' argument is straightforward: under the law, they must be kept "separate and apart" from inmates at all times; their treatment violates the law and therefore they are entitled to declaratory and injunctive relief. Defendants argue that the 1990 statute does not provide plaintiffs with a private right of action, that plaintiffs have not suffered a legally cognizable injury and that injunctive relief would harm the public interest.
The standard by which these issues are to be decided is well established. Summary judgment is proper where there are no genuine issues of material fact and the record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). On matters for which the moving party does not bear the burden of proof at trial, that party may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Pederson, 404 Mass. at 17. The nonmoving party cannot defeat the motion for summary judgment by resting on his or her pleadings and mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). The court does not weigh evidence, assess credibility or find facts but only applies the law to the undisputed facts. See Kelley v. Rossi, 395 Mass. 659, 663 (1985).
Private Right of Action
The defendants argue that the 1990 statute does not provide plaintiffs with a private right of action. Plaintiffs argue that they fall squarely within the scope of G.L. c. 231A, the declaratory judgment statute.
In Massachusetts, courts "have generally been reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference." Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544 (1998). In some cases, a clear indication of legislative intent is required. Id. at 543. In other cases, legislative intent is the determinative factor in deciding whether to infer a private cause of action under a statute, even if that intent is not "clear." Id. One of the leading cases in Massachusetts on inferring a private cause of action is Berdos v. Tremont Suffolk Mills, 209 Mass. 489 (1911). In Berdos, a criminal statute prohibited the employment of a child under 14, but the statute provided no private remedy. The plaintiff, who was under 14, was injured. The Court held that a directed verdict in favor of the defendant was error.
It is a general rule of statutory interpretation that a violation of a duty created by a statute, resulting in damage to one of the class for whose benefit the duty was established, confers a right of action upon the injured person.
Id. at 492. The Court then considered the purpose of the statute, which it found to be the protection of childhood. From this, the Court inferred that the remedy the Legislature intended was not confined to criminal sanctions, but included a civil right of action. Because the plaintiff was within the class sought to be protected, he was entitled to maintain an action for damages against the violator of the statute. Id. at 493.
The Court held:
Therefore, while the public purposes of this act are important, any member of the public so situated with reference to its subject matter as to suffer special damage by its infraction has a right of action against the violator of the statute. Berdos, 209 Mass. at 493.
In Gabriel v. Borowy, 324 Mass. 231, 234 (1949), inferring a common law remedy in favor of tenants from a Federal act barring certain acts by landlords, the Court held:
Where a statutory right is conferred upon a class of individuals as distinguished from the public at large but no remedy is provided by the statute for the enforcement of the right, the right may be asserted by any appropriate common law remedy that is available. Otherwise, the right would be useless and illusory.
Id. at 234.
In Ludlow Educ. Ass'n v. Ludlow, 31 Mass. App. Ct. 110, 120, rev. denied, 411 Mass. 1104 (1991), the Appeals Court attempted a synthesis of Berdos and cases which followed:
[W]here the applicable law evidences a special legislative concern for an identified interest of a group of which the plaintiff is a member, and not merely a concern for the public generally, a private cause of action will be implied if the injury suffered falls within the area of concern.
More recently, in Loffredo, 426 Mass. at 544, the Court adopted a more limited reading of Berdos, stating that Berdos held that "a defendant's violation of a statute that leads to a plaintiff's injury may figure as an element in an otherwise available cause of action, rather than that such a violation provides a plaintiff with a new cause of action."
Seizing on this language from Loffredo, defendants argue that plaintiffs must allege some independent cause of action for which the purported violation of the 1990 act may be "an element." However, the plaintiffs' complaint is framed as a declaratory judgment action. General Laws c. 231A, § 2, provides in relevant part:
The procedure under section one [providing authority to make declaratory judgments] may be used to secure determinations of right, duty, status or other legal relations under the common law, or a statute, including determination of any question of construction or validity thereof which may be involved in such determination. Said procedure under section one may be used in the [S]uperior [C]ourt to enjoin and to obtain a determination of the legality of the administrative practices and procedures of any municipal, county or state agency or official which practices or procedures are alleged to be in violation of the laws of the [C]ommonwealth. For the purpose of this section practices or procedures mean the customary and usual method of conducting municipal, county, state agency or official business.
This language on its face allows plaintiffs' action to survive defendants' argument that there is no private cause of action. Indeed, the Appeals Court has held that declaratory relief may be sought in a similar situation. See Henderson v. Commissioners of Barnstable County, 49 Mass. App. Ct. 455, 458-59 (2000) (prisoner complaints challenging officials' interpretation of statute, as opposed to prisoner complaints challenging basis of disciplinary proceedings, appropriately brought as actions seeking declaratory relief). Whether c. 231A, § 1 is effectively an "otherwise available cause of action" or whether the private cause of action argument the defendants raise is simply inapplicable when declaratory relief is appropriately sought, is immaterial here, where plaintiffs do not seek monetary damages. Plaintiffs' complaint survives even though there is no explicit right of action afforded inmates in St. 1990, c. 150, § 104.
These complaints are appropriately brought as civil actions in the nature of certiorari, which brings up the administrative record. Murphy v. Superintendent, Mass. Correctional Inst., Cedar Junction, 396 Mass. 830, 833 (1986). Wightman v. Superintendent, Mass. Correctional Inst., Walpole, 19 Mass. App. Ct. 442, 444 (1985).
Legally Cognizable Injury
Defendants next argue that plaintiffs have not alleged that they are suffering or are in danger of suffering a legally cognizable injury.
It is unclear whether defendants are raising a standing argument or an argument that plaintiffs have not satisfied the "actual controversy" requirement of G.L. c. 231A, 1. If defendants raise a standing argument, they only address the requirement that plaintiffs demonstrate that they have suffered some legally cognizable injury. Animal Legal Defense Fund, Inc. v. Fisheries Wildlife Bd., 416 Mass. 635, 638 (1993). Consequently, that is the only element of standing that I address here. See Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 135 (2000); Slama v. Attorney General, 384 Mass. 620, 624 (1981); Massachusetts Ass'n of Cosmetology Sch., Inc. v. Board of Registration in Cosmetology, 40 Mass. App. Ct. 706, 708 (1996). I am mindful, however, that the requirements of standing serve to limit the class of people who "can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of the government." Kaplan v. Bowker, 333 Mass. 455, 459 (1956). Defendants may be arguing that plaintiffs have not satisfied the "actual controversy" requirement of the declaratory judgment statute. The question whether an actual controversy exists is closely related to the issue of standing, but the concepts remain distinct. Massachusetts Ass'n of Indep. Ins. Agents Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). The declaratory judgment statute does not provide an independent basis for standing. Enos, 432 Mass. at 135. I am satisfied, for the reasons discussed above, that there exists an actual controversy in this case.
While defendants attempt to minimize the harm reported in the affidavits in the record, calling such harm merely taunts or teasing, it is apparent that the harm plaintiffs have shown is more than de minimis. Similarly, while the defendants argue that the Federal litigation already determined that the presence of inmates does not diminish the effectiveness of treatment residents receive, it is apparent that plaintiffs have shown potential harm beyond decreased effectiveness of treatment. For example, the affidavits show that plaintiffs are more prone to become involved in altercations now that inmates are at the Treatment Center. The plaintiffs legitimately fear that involvement in a physical altercation, even if the resident is ultimately exonerated, may have a negative impact on a resident's ability to obtain his release.
Also relevant is the type of harm discussed in King IV, 53 F. Supp. 2d at 131 (increased pat, strip and metal detector searches, random urinalysis testing and increased interruptions to therapy classes). Even apart from these harms, however, the plaintiffs have shown a legally cognizable injury.
On its face, St. 1990, c. 150, § 104 seeks to provide the DOC with a mechanism of using the anticipated increasingly vacant space in the Treatment Center to ease overcrowding at other facilities and to address "special correctional needs" of inmates. At the same time, concern is expressed for residents of the Treatment Center. Thus, while the two populations may utilize the same Treatment Center, they are to be kept "separate and apart" "at all times." The "zone of interests" arguably protected by the statute, then, includes residents' and inmates' interests in not being harmed by intermingling of the two populations. See Enos, 432 Mass. at 135. The harm that plaintiffs have substantiated is sufficient to show a legally cognizable injury. In so ruling, I am mindful that the standing and "actual controversy" requirements under G.L. c. 123A should be liberally construed. Massachusetts Ass'n of Indep. Ins. Agents Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977). Massachusetts Ass'n of Cosmetology Sch., Inc. v. Board of Registration in Cosmetology, 40 Mass. App. Ct. 706, 708 (1996).
This is not to say, of course, that the harm the plaintiffs have established is injury of constitutional dimension. Demonstrating a legally cognizable injury for these purposes is not the same as demonstrating that the plaintiffs' conditions of confinement are so punitive in effect as to negate the intention to deem c. 123A civil. Cf. Commonwealth v. Bruno, 432 Mass. 489, 500-01 (2000). Such a claim is not now before me.
Violation of the Statute
As noted above, the plaintiffs' argument is straightforward: the statute requires inmates and residents to be kept separate and apart at all times; residents are not so kept, and plaintiffs are therefore entitled to relief. The defendants do not specifically argue that the 1990 statute has not been violated. Nevertheless, because the issue is significant, I discuss it here.
In footnote 17 to their brief, defendants state that they do not concede a violation of the 1990 statute. Their argument here is that the 1990 statute was repealed by implication by later amendments to c. 123A and that plaintiffs' claims are barred by issue and claim preclusion. These arguments do not amount to arguments that the present policy at the Treatment Center is in compliance with the 1990 statute.
The relevant portion of the 1990 statute states: "[T]reatment [C]enter patients shall at all times remain separate and apart from [DOC] inmates." (Emphasis added). The statute's language, "shall," states a mandatory condition. The phrase "at all times" admits of no exception. "Separate and apart," in context, requires that each population remain isolated from the other. The rule, then, is an absolute condition: the DOC may use space at the Treatment Center for inmates, even sex offender inmates, only if the inmates remain completely separated from the residents. At present, while inmates and residents are housed separately, they intermingle in common areas, such as the dining facility and library, and they attend a number of classes together. It is apparent, then, that the clear, mandatory condition that St. 1990, c. 150, § 104 places on DOC placement of inmates at the Treatment Center is at present violated by DOC policy. Plaintiffs are entitled to a declaration to that effect.
Remedy
A more difficult issue is presented by plaintiffs' request for a permanent injunction. Plaintiffs ask that this court enjoin the defendants from failing to keep plaintiffs and inmates separate and apart at all times.
Defendants assert, and plaintiffs do not deny, that the standard for permanent injunctions is that stated in K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 914-15 (1st Cir. 1989). The standard is the same as that for preliminary injunctive relief, except that the movant must show actual success on the merits, rather than only a likelihood of success. Id. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987). Defendants concede that plaintiffs need not show irreparable harm, and therefore the standard applied in LeClair v. Norwell, 430 Mass. 328, 331 (1999) is appropriate. Defs.' Brief at 24. It is therefore defendants' position — and plaintiffs do not disagree that, assuming that plaintiffs succeed on the merits of their claim that the 1990 statute is being violated (as I have found), this case turns on this court's determination of whether "'the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public.' Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). Moreover, where a statutory violation is alleged, the judge should specifically consider how the statutory violation affects the public interest." LeClair, 430 Mass. at 331-32. In this case, I conclude that an injunction would harm the public interest.
There exists at least some doubt as to whether, or to what extent, the plaintiffs are acting as private attorneys general enforcing a statute. Cf. LeClair, 430 Mass. at 331; Edwards v. Boston, 408 Mass. 643, 646-47 (1990). Nevertheless, the parties, by agreement or otherwise, have framed their argument under the LeClair standard, which in this case is more generous to plaintiffs than the standard of Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980).
In LeClair, the SJC examined whether the public interest would support entering an injunction to void a contract which had been entered in violation of public construction statutes. The Court considered (1) the express purposes of the violated statute, (2) whether the Legislature favored the sought-after consequence (or any particular consequence) as a remedy for violation of the statute, (3) whether there was evidence of bad faith or purposeful evasion of the requirements of law and (4) whether an injunction might do serious damage to the interests of the public. LeClair, 430 Mass. at 337-39.
The purposes of St. 1990, c. 150, § 104 must be considered in connection with the broader purposes of G.L. c. 123A. The purpose of c. 123A has been and remains "to identify and treat sexually dangerous persons. The statute was enacted 'with the dual aims of protecting the public against future antisocial behavior by the offender, and of doing all that can be done to rehabilitate him.'" Commonwealth v. Barboza, 387 Mass. 105, 111 (1982), quoting Commonwealth v. Knowlton, 378 Mass. 479, 483 (1979). See Bruno, 432 Mass. at 500. Statute 1990, c. 150, § 104 must be read consistently with this purpose. Having been enacted simultaneously with the repeal of the commitment procedures of c. 123A, the context of the statute's enactment was such that the Legislature envisioned no new influx of residents to the Treatment Center, and a consequent decline in the resident population. Thus, the Legislature sought to allow DOC to utilize vacant space at the Treatment Center. The Legislature also allowed DOC to address "any special correctional needs" of inmates by placing inmates at the Treatment Center, and to develop a plan for voluntary sex offender treatment for inmates at DOC facilities. The 1990 statute's purposes, therefore, were to ensure efficient use of space while remaining faithful to c. 123A's purpose of providing residents with treatment and encouraging expansion of sex offender treatment services to inmates. Inmates could be secured within the Treatment Center and could even receive sex offender treatment, but only if they remained at all times separate and apart from residents. It is significant, as is discussed below, that because of the 1990 statute's enactment there was no mechanism for inmates ultimately to become residents after expiration of their sentences. This court must be mindful of the purposes of the statute when considering the effect on the public interest. LeClair, 430 Mass. at 337.
It may be that the Legislature was mindful of the constitutional limitations on civil confinement, viz., that persons civilly committed not be treated punitively. Constitutional issues are not before me. The only question at issue here is what, if any, remedy flows from violation of the 1990 statute. Defendants may be correct that the purpose of the "separate and apart" requirement of the 1990 statute was to provide a structure that accommodated the needs of both the DOC and the DMH, both of which had authority over the Treatment Center at that time. It seems to me more likely, however, that the Legislature was concerned with not turning residents into a de facto subclass of inmate.
There is no evidence that the Legislature favors granting of injunctive relief as a remedy for violation of St. 1990, c. 150, § 104. Indeed, there is no evidence that the Legislature intended any particular consequence to flow from violation of the 1990 statute's "separate and apart" clause. See LeClair, 430 Mass. at 337-38.
There is also no evidence of bad faith or purposeful evasion of legal requirements on the part of defendants. To the contrary, the evidence is that the DOC examined St. 1990, c. 150, § 104 and determined that it lawfully could introduce inmates to the Treatment Center. Although I disagree in part with that conclusion, there is no evidence before me that the DOC acted in bad faith or deliberately sought to evade the requirements of law.
Finally, consideration of the public interest cuts decidedly in defendants' favor. The 1990 statute sought to maintain the therapeutic environment created for residents under the prior c. 123A, while at the same time to utilize empty space and expand sex offender treatment. There have been significant changes in c. 123A since 1990. Although, as I have noted, these changes do not by implication repeal St. 1990, c. 150, § 104, they must be considered in determining whether the public interest speaks in favor of injunctive relief. The DMH no longer runs the Treatment Center. The civil commitment process has been revived, so that those who are currently inmates may, at the expiration of their sentences, become residents of the Treatment Center. Efficient use of increasingly vacant space is no longer the reason inmates are at the Treatment Center. Rather, inmates as well as residents are present to receive sex offender treatment. Granting injunctive relief would, in effect, terminate sex offender treatment provided to inmates for the time it took the DOC to build facilities for inmates paralleling residents' facilities, assuming the DOC would undertake to build such facilities. The harm to the public interest that would result from this is manifest.
The harm to the public interest that plaintiffs claim is largely mooted by the recent amendments to c. 123A or belied by the record. To the extent plaintiffs claim that inmates treat them as inferiors because plaintiffs are in a category that inmates will never enter, such is no longer the case. Under the current statutory framework, upon the expiration of their prison sentences inmates may face indeterminate civil commitment. While plaintiffs may subjectively feel harmed by the presence of inmates, the record evidence does not show that inmates' presence has an adverse effect on residents' treatment progress. Accord King IV, 53 F. Supp.2d at 131 (while introduction of inmates to Treatment Center resulted in increased searches, random urinalysis testing and more class interruptions, clinical director found that presence of inmates brings positive therapeutic influences to Treatment Center); id. at 135 (residents' complaints regarding effect of presence of inmates, taken in their totality, do not show treatment is impaired or affected such as to render it ineffective).
To be sure, plaintiffs do allege some harm, discussed above in the section discussing legally cognizable injury, which is not moot and not addressed by defendants. For example, plaintiffs legitimately fear that a negative impact may result if they are implicated, even erroneously, in an altercation. I have considered these harms and the public interest in the fair and accurate determination of sexual dangerousness. I conclude that, when the totality of the public interest is considered, injunctive relief is not appropriate. Said differently, on balance, "it is apparent that the public interest would not be served by entering an injunction." LeClair, 430 Mass. at 339.
CONCLUSION
The undisputed facts in the summary judgment record show that defendants are in violation of the requirement of St. 1990, c. 150, § 104 that inmates and residents be kept separate and apart at all times. Plaintiffs are therefore entitled to a declaration to that effect. In this case plaintiffs seek an extraordinary remedy. Under settled principles of law, plaintiffs are not entitled to the injunctive relief they seek. The obligation plaintiffs seek to enforce is one created only by statute. In considering whether to enjoin violation of that statute, this court must read the statute in light of the directives of other statutes, together with legislative purpose and the public interest. Constitutional issues, which are not before me, may present a different question.
ORDER
For the foregoing reasons, the parties' cross motions for summary judgment are each ALLOWED in part and DENIED in part. A declaration shall enter, declaring that defendants are in violation of St. 1990, c. 150, § 104 for failure to keep residents and inmates separate and apart at all times. Plaintiffs' request for injunctive relief is DENIED .