Case 1:14-cv-12813-JCB Document 1 Filed 06/30/14 Page 1 of 24

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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Jane Doe, individually and on behalf of all )

others similarly situated,

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Plaintiff,

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v.

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Deval L. Patrick, Governor of the

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Commonwealth of Massachusetts;

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Massachusetts Department of Correction; Luis )

S. Spencer, Commissioner of the Massachusetts)

Department of Correction; and Lynn

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Bissonnette, Superintendent of the

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Massachusetts Correctional Institution at

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Framingham,

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Defendants.

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Civil Action No. _______

CLASS ACTION COMPLAINT

INTRODUCTION 1. Jane Doe1 (“Plaintiff”) brings this lawsuit on behalf of herself and all

others who are or will be imprisoned at the Massachusetts Correctional Institution at

Framingham (“MCI-Framingham”) solely because they have been civilly committed

under Chapter 123, Section 35 of the Massachusetts General Laws (“Section 35”). These

women are not being held because they have been charged with or convicted of any

crime. They are committed solely for the explicit statutory purpose of Section 35:

“inpatient care” of individuals at risk of “serious harm” resulting from their addiction.

1 Jane Doe is a pseudonym. Plaintiff’s motion seeking leave to proceed pseudonymously is forthcoming.
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However, women sent to MCI-Framingham are not provided with “inpatient care.” They are put through a brief detoxification, and then they are simply incarcerated.
2. The staff at MCI-Framingham, from the Superintendent to the guards, treat women civilly committed under Section 35 as ordinary prisoners. Upon admission, the civilly committed women are required to sit on a body orifice security scanner chair to detect metal objects concealed in body cavities. They must submit to a strip search, which includes a visual inspection of their oral, anal, and vaginal cavities. Their personal property is taken from them. They are issued prison uniforms. Once confined, they are housed with women awaiting trial on criminal charges. They are subject to pat searches conducted by guards and cell “shakedowns.” They must stand by their bunk for regular “counts” four times a day, starting at 6 A.M.
3. Indeed, women civilly committed under Section 35 have less freedom than other prisoners confined at MCI-Framingham. Unlike convicted criminals and pretrial detainees, civilly committed women at MCI-Framingham are allowed outside for no more than 15 hours per week and, even then, only have access to a small, gravel-lined caged space, which often is not shaded. They cannot visit the library, pray at the chapel, or participate in most recreational programs or organized activities.
4. Civilly committed women are barred from participating in the prison’s substance abuse treatment programs. Following detoxification, treatment is available only to women being held at MCI-Framingham because they have been charged with or convicted of crimes.
5. The imprisonment of women civilly committed to MCI-Framingham
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amounts to the criminalization of addiction, unnecessarily stigmatizing those who have an urgent medical need. Placing civilly committed women in prison, rather than an appropriate treatment facility, is traumatic and incompatible with professional judgment regarding the treatment of people with the disease of addiction. It occurs only because Massachusetts has chosen not to establish an adequate number of treatment beds in community facilities to meet the needs of civilly committed women.
6. Massachusetts is the only state in the country that imprisons people for drug or alcohol addiction. As Governor Patrick has recognized, “treating those with substance abuse as prisoners is wrong.”2 It is also illegal. Treating Plaintiff and the other members of the proposed class (the “Class”) as criminals instead of as people with a disability requiring professional inpatient care violates their right to substantive due process, guaranteed by the Constitutions of the United States and the Commonwealth, and their rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and Massachusetts law to be free from discrimination.
7. For over two decades, multiple governmental advisory panels have recommended terminating the policy of incarcerating individuals committed under Section 35, yet Defendants have failed to act on any of those recommendations.
8. This class action seeks declaratory and injunctive relief prohibiting Defendants from continuing the unlawful practice of confining women civilly committed solely under Section 35 at MCI-Framingham and requiring Defendants to provide these
2 Governor Deval L. Patrick, Remarks at Reform, Re-entry and Results: Change and Progress in the Massachusetts Criminal Justice System (Feb. 20, 2014), available at http://www.mass.gov/governor/pressoffice/speeches/0220-re-entry-forum-remarks.html.
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individuals with “care and treatment of alcoholism or substance abuse” in a Department of Public Health (“DPH”) licensed facility in the community, as required by Section 35.
JURISDICTION & VENUE 9. This Court has jurisdiction over Plaintiff’s federal and state law claims pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. 10. Plaintiff is entitled to declaratory and other relief deemed necessary and proper pursuant to 28 U.S.C. §§ 2201 and 2202. 11. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), as a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this District.
THE PARTIES 12. Plaintiff Jane Doe has suffered from substance abuse addiction for multiple years. She was civilly committed to MCI-Framingham under Section 35 in June 2014. Ms. Doe was not charged with any crime. She remains imprisoned in MCIFramingham as of the date of the filing of this Complaint. Ms. Doe is subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham. She is not currently receiving substance abuse treatment. 13. Defendant Deval L. Patrick is the Governor of the Commonwealth of Massachusetts. Defendant Patrick maintains an office at the Massachusetts State House, Office of the Governor, Room 105, Boston, Massachusetts 02133. Defendant Patrick is sued in his official capacity. 14. Defendant Massachusetts Department of Correction (“DOC”) is an executive department of the Commonwealth of Massachusetts. It is a “public entity”
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within the meaning of the ADA. See 42 U.S.C. § 12131(1). 15. Defendant Luis S. Spencer is the DOC Commissioner. By statute,
Defendant Spencer is designated responsible for the administration of all correctional facilities in Massachusetts. See Mass. Gen. Laws ch. 124, § 1. Defendant Spencer maintains an office at DOC Central Headquarters, 50 Maple Street, Suite 3, Milford, Massachusetts 01757. Defendant Spencer is sued in his official capacity.
16. Defendant Lynn Bissonnette is the Superintendent of MCI-Framingham. By statute, Defendant Bissonnette is designated “responsible for the custody and control of all prisoners” in MCI-Framingham. Mass. Gen. Laws ch. 125, § 14. Under DOC policy, she is “ultimately responsible for the overall functioning of the institution.” 103 DOC 101.01 (October 2013). Defendant Bissonnette maintains an office at MCIFramingham, 99 Loring Drive, P.O. Box 9007, Framingham, Massachusetts 01701. Defendant Bissonnette is sued in her official capacity.
CIVIL COMMITMENT UNDER SECTION 35 A. Statutory Framework of Section 35 17. Section 35 allows certain individuals to petition a district or juvenile court for the civil commitment of anyone whom the petitioner alleges is addicted to alcohol or a controlled substance and who allegedly presents a risk of danger to himself or herself or others due to his or her addiction. Mass. Gen. Laws ch. 123, § 35. 18. Section 35 defines a substance abuser or alcoholic as a person who “chronically or habitually” uses controlled substances or alcohol to the extent that “such use substantially injures his health or substantially interferes with his social or economic functioning . . . or . . . he has lost the power of self-control over the use of” controlled
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substances or alcohol. Id. 19. If a court finds, after a hearing and medical examination, that the
individual is an alcoholic or substance abuser and that “there is a likelihood of serious harm as a result of the person’s alcoholism or substance abuse,” then the court may order the individual to be civilly committed. Id. The statutory period of commitment can be up to 90 days. Id.
20. Section 35 directs that these individuals shall receive “inpatient care in public or private facilities approved by [DPH] under [C]hapter 111B for the care and treatment of alcoholism or substance abuse.” Id. If “suitable facilities” under Chapter 111B are unavailable, the statute authorizes the civil commitment of women to MCIFramingham. Id.
21. DPH has failed to establish a sufficient number of “suitable facilities” to provide care and treatment to women committed under Section 35. As a result, since 2011, more than 540 civilly committed women have been incarcerated at MCIFramingham.
B. DPH Mandates for the Care of Section 35 Commitments 22. Chapter 111B of the Massachusetts General Laws requires DPH to establish a statewide program for the treatment of persons who are alcoholics. Mass. Gen. Laws ch. 111E, § 7 requires similar services for individuals with substance abuse disorders. 23. All facilities established under these statutes must be licensed or approved by DPH and comply with DPH minimum standards as set forth in 105 Code of
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Massachusetts Regulations (“CMR”) 164.001 et seq. These standards require that each resident receive an individualized treatment plan and at least four hours of treatment per day. 105 CMR 164.073-.074.
24. Although each facility must have policies for managing disruptive behavior, “physical restraint[] in any form” is prohibited. 105 CMR 164.078(C). Each facility must also guarantee its client certain minimum rights, including the “freedom from strip searches and body cavity searches.” 105 CMR 164.079(B)(2).
25. Under its statutory authority, DPH funds High Point, a private vendor, to provide services for women civilly committed under Section 35 at the Women’s Addiction Treatment Center (“WATC”) in New Bedford, Massachusetts. WATC has approximately 90 beds.
26. The program operates acute treatment service beds for detoxification, “step-down” beds for those with less acute treatment needs, and transitional beds for those who have finished their commitment and choose to voluntarily stay until being placed in a half-way house. WATC is staff-secured, but not locked.
27. Every day, women committed at WATC are offered a variety of treatment and recovery options.
28. They are provided with substance abuse treatment programs throughout each day and into the evenings. These include individual and group counseling, family support and education, 12-step programs, trauma awareness, coping skills, and aftercare planning.
29. WATC also provides related programming on issues including relapse
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prevention, relationships, HIV awareness, domestic violence, nutrition, self-help, and recovery.
30. Women committed at WATC meet with a case manager every day; most case managers have a master’s degree in social work or are licensed alcohol and drug counselors. Case management includes planning, goal development, and family unification services. Case managers facilitate referrals for physical and mental health care, legal issues, and vocational and educational needs.
31. WATC staff members assist women in transitioning to residential rehabilitation sites and discharge services.
32. During detoxification, women committed at WATC are provided with the full range of treatment protocols and medication, including methadone, Suboxone (buprenorphine and naloxone), or Vivitrol (naltrexone), based on individualized assessments.
33. Following detoxification, women committed at WATC live in four-person rooms and are allowed to personalize their spaces and have personal items.
34. During the initial stages of their stay, women are expected to remain within the facility and its outdoor patio area. Subsequently, they may be entitled to leave the facility during the day for volunteer work and other activities in the community.
C. MCI-Framingham 35. MCI-Framingham is the most secure prison for women in Massachusetts. It is not designed, equipped, or staffed to serve as a treatment facility for individuals with
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addiction.3 36. The oldest female correctional institution operating in the United States,
MCI-Framingham holds women awaiting trial or sentencing, as well as women serving sentences for serious crimes, including murder.
37. It is surrounded by high walls, two chain-link fences topped with razor wire, and armed guards who monitor the perimeter.
38. Although Mass. Gen. Laws ch. 125, § 16 requires that the DOC maintain at MCI-Framingham “a facility for the treatment and rehabilitation of alcoholics, subject to the approval of [DPH] under the provisions of [C]hapter [111B],” no such facility has been established.
39. Instead, women sent to MCI-Framingham solely due to civil commitment under Section 35 (sometimes called “straight civils”) are housed in the same facility with and treated like prisoners.
40. When women civilly committed under Section 35 first enter MCIFramingham, they are subject to the same intake procedures as convicted prisoners and pretrial detainees.
41. These procedures include sitting on a body orifice security scanner chair to detect metal objects concealed in body cavities, a strip search, and a visual search of oral, anal, and vaginal cavities.
42. Their personal property is taken from them, and they are issued prison uniforms.
3 Commonwealth of Mass., Dep’t of Corr. Advisory Council, Final Report 5 (2005). 9

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43. Detoxification services for all prisoners at MCI-Framingham are provided in the infirmary unit. During detoxification, women civilly committed under Section 35 are placed in cells with pretrial detainees.
44. The infirmary has one cell with five beds and an open toilet—which is visible not only to cellmates, but also from the nurses’ station and the hall—and a number of two- and three-person cells with an open toilet in the cell and windows to the hallway, affording little privacy.
45. The infirmary unit follows the DOC treatment protocols for opioid, benzodiazepine, and alcohol detoxification.
46. Consequently, the medications available to individuals going through detoxification at MCI-Framingham are very limited, unlike at DPH facilities.
47. For example, for women suffering from heroin withdrawal, MCIFramingham provides only over-the-counter medication such as acetaminophen, ibuprofen, Tums, and Imodium,4 rather than drugs federally-approved for use in the treatment of opioid addiction, such as methadone, Suboxone, or Vivitrol. 42 C.F.R. § 8.12(h)(2)(i), (iii).
48. After detoxification, which usually takes from one to five days, women civilly committed under Section 35 are housed with pretrial detainees and treated like prisoners. Women civilly committed under Section 35 are generally housed in a
4 The one exception to this policy is that pregnant women have access to methadone. 10

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temporary modular building known as the “Mod.”5 49. In the Mod, civilly committed women live in a 40-person dormitory along
with pretrial detainees. 50. All of the women are supervised by uniformed correctional officers, some
of whom mock the civilly committed women, refuse to give them access to medical help for symptoms associated with drug withdrawal, and seek to intimidate them when they complain.
51. Along with the standard prison conditions faced by all women at MCIFramingham, including strip searches, pat searches, cell shakedowns, regular “counts” four times a day, starting at 6 A.M., and the full range of DOC discipline (potentially including solitary confinement), the “straight civils” endure even harsher conditions of confinement than the detainees with whom they are housed.
52. Unlike other prisoners, civilly committed women do not have access to the prison recreation yard, but instead are escorted to an outdoor recreation area consisting of a small cage covered in black netting with a gravel floor. There is often little or no shade, and the women are not allowed to have water in the cage. Access to the cage is limited to, at most, two and a half hours per day, six days per week.
53. These women also have no access to programs available to the rest of the
5 Some women are committed under Section 35 and have a criminal charge pending against them. These individuals are considered to have “dual status,” and are placed in prison. They are housed in a separate unit from the straight civils and participate in a treatment program offered at MCI-Framingham called “First Steps.” These dual status individuals are not members of the proposed class. Approximately one-third of all Section 35 commitments have a criminal charge pending. See Mass. Dep’t of Pub. Health, Bureau of Substance Abuse Servs., Sec 35 – Civil Commitments FY12 – Year End Report 4 (2012).
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prison population, including peer-directed groups such as Alcoholics Anonymous, Narcotics Anonymous, and peer counseling. The civilly committed women are permitted no religious services and no library access.
D. The Impact of Incarceration under Section 35 54. Imprisoning civilly committed women is counter-therapeutic. 55. Addiction is a complex brain disease characterized by the disruption of a person’s ability to control her behavior even in the face of devastating consequences. In numerous ways, imprisoning civilly committed people suffering from this disease can impede rather than advance effective treatment. 56. For example, civil commitment to MCI-Framingham is traumatic and stigmatizing. Women experience shame, humiliation, and loss of dignity. 57. The women are often intimidated by the harsh conditions of confinement and can be nervous about being housed in a dormitory filled with individuals charged with serious crimes who sometimes threaten and assault them. 58. They do not understand why they are in prison when they were supposedly committed to receive treatment. 59. Incarcerating these women also reflects and perpetuates unwarranted prejudices about individuals with alcoholism and substance abuse disorders and reinforces the perception that they are second-class citizens. Indeed, even their family and friends often believe the women must have engaged in crime to end up in prison. 60. Their imprisonment undermines their self-image and causes them to experience fear and confusion regarding the purpose of their confinement.
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61. Far from providing an opportunity to begin meaningful recovery, the imprisonment of women civilly committed to MCI-Framingham is punitive. They are simply warehoused in the Mod and denied participation in programs available to sentenced prisoners and pretrial detainees.
62. Family members who file Section 35 petitions are often horrified, telling the DOC that they would not have initiated the process if they had known their loved one would be sent to prison.
63. Women civilly committed to MCI-Framingham under Section 35 are isolated from their communities both psychologically and physically. Because the prison is often far from their homes and families, and communication and visitation are restricted, it is difficult to establish relationships with aftercare services in their own communities.
64. By authorizing the civil commitment of women to prison, Section 35 reinforces longstanding societal prejudice against individuals with alcoholism and substance abuse disorders.
65. Defendants have long been aware that imprisoning civilly committed individuals is inconsistent not only with the proper treatment of addiction, but also with the proper mission of the DOC.
66. For example, in 1989, the Governor’s Special Advisory Panel on Forensic Mental Health recommended that “only individuals who are subjects of the criminal
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justice system” should be committed to prison under Section 35.6 67. In 2005, the Governor’s Corrections Advisory Council also recommended
against committing women to MCI-Framingham under Section 35.7 68. In 2008 and again in 2011, an independent consultant retained by the DOC
recommended that Massachusetts discontinue civil commitments to MCI-Framingham “as soon as possible.”8
69. Nevertheless, the Commonwealth has continued to fail to make sufficient beds available for these women in appropriate treatment facilities.
ALLEGATIONS RELATING TO PLAINTIFF JANE DOE 70. Plaintiff Jane Doe has experienced all of the prison conditions above described. 71. After being civilly committed, Ms. Doe was transported in a police wagon to MCI-Framingham. 72. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus. She was also forced to sit on a body orifice security scanner chair. 73. Ms. Doe was forced to turn over all her personal items, including her
6 Commonwealth of Mass., Governor’s Special Advisory Panel on Forensic Mental Health, Final Report 33 (1989). 7 Commonwealth of Mass., Dep’t of Corr. Advisory Council, Final Report 5 (2005). 8 MGT of America, Inc., Analysis of Health Care Costs in the Massachusetts Department of Correction 17, 78 (2011).
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clothing, and was forced to wear a prison uniform. 74. Ms. Doe was sent to the infirmary unit for detoxification. She was given
only over-the-counter medications for her withdrawal symptoms. 75. After detoxification, she was moved to the Mod. 76. Ms. Doe has been locked in the Mod for the majority of her days at MCI-
Framingham. 77. Ms. Doe has declined to visit the gravel-lined caged recreation area, which
the correctional officers have referred to as the “kennel,” because the unshaded space is hot and the correctional officers do not provide civilly committed women with water while they are in the “kennel.”
78. Ms. Doe has not met with a caseworker or a mental health counselor during her incarceration at MCI-Framingham.
79. She also has received no substance abuse treatment during her incarceration at MCI-Framingham.
80. Ms. Doe has experienced increased anxiety since her arrival, particularly due to the uncertainty regarding when she will leave MCI-Framingham and receive treatment.
CLASS ACTION ALLEGATIONS 81. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure.9
9 The reasons supporting class certification will be more set forth in Plaintiff’s forthcoming Memorandum of Law in Support of Plaintiff’s Motion for Class Certification.
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82. The putative class is defined as: “All women who are now or will be placed in MCI-Framingham based solely on a civil commitment under Massachusetts General Laws Chapter 123, Section 35.”
83. The members of the class are so numerous that joinder of all members is impracticable. According to data from the DOC, between 2011 and 2013, approximately 540 women were imprisoned at MCI-Framingham based solely on a civil commitment under Section 35. Moreover, the inherent transitory state of the putative class members makes joinder impracticable.
84. The common issues central to the validity of the claims in this class action are: (a) whether the imprisonment of women committed solely under Section 35 violates their substantive due process rights under the United States and Massachusetts Constitutions because their imprisonment is incompatible with the statutory purpose of in-patient treatment for substance abuse, and a substantial departure from any professional judgment about helping people recover from the disease of addiction; and (b) whether it impermissibly discriminates against them based on their disability in violation of the ADA and Massachusetts law.
85. The legal violations alleged by the named Plaintiff and the resultant harms are typical of those raised by each member of the putative Class.
86. The named Plaintiff will fairly and adequately protect the interests of the Class. There is no conflict between the interests of the named Plaintiff and the proposed Class.
87. Plaintiff’s counsel are competent and experienced in class action,
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disability, and complex civil rights litigation. Plaintiff’s counsel have committed sufficient resources to fully litigate this case through trial and any appeals.
CLAIMS FOR RELIEF COUNT I
Violation of Substantive Due Process Guaranteed by the Fourteenth Amendment to the United States Constitution 88. Plaintiff incorporates the preceding paragraphs of this complaint as if fully set forth herein. 89. The Fourteenth Amendment to the United States Constitution provides that “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” 90. Plaintiff has a liberty interest in not being unjustly incarcerated in prison. 91. Plaintiff’s incarceration in prison represents a substantial departure from accepted professional judgment, practice, or standards. Plaintiff’s incarceration does not bear any reasonable relation to the purpose of Section 35, which, according to the statute, is to provide for “the care and treatment of alcoholism or substance abuse.” 92. By their policies, practices, and actions, Defendants violate the rights of Plaintiff, as well as all members of the proposed Class, to substantive due process guaranteed by the Fourteenth Amendment to the United States Constitution, as enforceable under 42 U.S.C. § 1983. 93. Plaintiff has suffered immediate and irreparable injury as a result of the unlawful acts, omissions, policies, and practices of Defendants as alleged herein and will continue to suffer that harm unless class-wide relief is granted.
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94. Plaintiff has no adequate remedy at law to protect herself and those similarly situated from this harm. The injunctive relief sought by Plaintiff is necessary to prevent continued and further injury.
COUNT II Violation of Title II of the Americans with Disabilities Act 95. Plaintiff incorporates the preceding paragraphs of this complaint as if fully set forth herein. 96. Title II of the ADA prohibits a “public entity” from discriminating against a “qualified individual with a disability . . . by reason of such disability.” 42 U.S.C. § 12132. 97. Plaintiff, as an individual committed under Section 35 for substance addiction, is a “qualified individual with a disability” under Title II of the ADA, as defined in 42 U.S.C. § 12131(2) and § 12102(1). 98. Defendant DOC is a “public entity” under Title II of the ADA, as defined in 42 U.S.C. § 12131(1). 99. Under Section 35, Plaintiff was placed in prison solely because of her disabilities. She was not committed because of a criminal charge or conviction. No other citizens in Massachusetts are forced to endure such unjustified incarceration as a condition of receiving needed medical treatment. 100. The imprisonment of Plaintiff under Section 35, including the imprisonment of all members of the proposed Class, violates Title II of the ADA by subjecting Plaintiff to discrimination solely on the basis of her disabilities. 101. Plaintiff has suffered immediate and irreparable injury as a result of the
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unlawful acts, omissions, policies, and practices of Defendants as alleged herein and will continue to suffer that harm unless class-wide relief is granted.
102. Plaintiff has no adequate remedy at law to protect herself and those similarly situated from this harm. The injunctive relief sought by Plaintiff is necessary to prevent continued and further injury.
COUNT III Violation of Substantive Due Process Guaranteed by the Constitution of the Commonwealth of Massachusetts 103. Plaintiff incorporates the preceding paragraphs of this complaint as if fully set forth herein. 104. Article 1 of the Massachusetts Declaration of Rights, as amended by Article 106 of the Amendments to the Constitution of the Commonwealth of Massachusetts, provides: “All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; . . . in fine, that of seeking and obtaining their safety and happiness.” 105. Article 10 of the Massachusetts Declaration of Rights provides: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws.” 106. Article 12 of the Massachusetts Declaration of Rights provides that “no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.”
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107. Article 4 of Section 1 of Chapter 1 of Part the Second of the Constitution of the Commonwealth of Massachusetts provides that the General Court has power “to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances . . . so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same . . . .”
108. Plaintiff has a liberty interest in not being unjustly incarcerated in prison. 109. Plaintiff’s incarceration in prison represents a substantial departure from accepted professional judgment, practice, or standards. Plaintiff’s incarceration does not bear any reasonable relation to the purpose of Section 35, which, according to the statute, is to provide for “the care and treatment of alcoholism or substance abuse.” 110. By their policies, practices, and actions, Defendants violate the rights of Plaintiff, as well as all members of the proposed Class, to substantive due process guaranteed by the Constitution of the Commonwealth of Massachusetts. 111. Plaintiff has suffered immediate and irreparable injury as a result of the unlawful acts, omissions, policies, and practices of Defendants as alleged herein and will continue to suffer that harm unless class-wide relief is granted. 112. Plaintiff has no adequate remedy at law to protect herself and those similarly situated from this harm. The injunctive relief sought by Plaintiff is necessary to prevent continued and further injury.
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COUNT IV Violation of Article 114 of the Constitution of
the Commonwealth of Massachusetts 113. Plaintiff incorporates the preceding paragraphs of this complaint as if fully set forth herein. 114. Article 114 of the Constitution of the Commonwealth provides that no “otherwise qualified handicapped individual” may “solely by reason of his handicap” be discriminated against in the context of “any program or activity within the commonwealth.” 115. Plaintiff, as an individual committed under Section 35 for addiction to alcohol or controlled substances, is an “otherwise qualified handicapped individual.” 116. Under Section 35, Plaintiff was placed in prison solely because of her disabilities. She was not committed because of a criminal charge or conviction. No other citizens in Massachusetts are forced to endure such unjustified incarceration as a condition of receiving needed medical treatment. 117. The imprisonment of Plaintiff under Section 35, as well as the imprisonment of all members of the proposed Class, violates Art. 114, as enforceable by M.G.L. ch. 93, § 103, by subjecting Plaintiff to discrimination solely on the basis of her disabilities. 118. Plaintiff has suffered immediate and irreparable injury as a result of the unlawful acts, omissions, policies, and practices of Defendants as alleged herein and will continue to suffer that harm unless class-wide relief is granted. 119. Plaintiff has no adequate remedy at law to protect herself and those
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similarly situated from this harm. The injunctive relief sought by Plaintiff is necessary to prevent continued and further injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:
a. Certify this action as a class action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2) and declare that Plaintiff is a representative of the Class and that Plaintiff’s counsel are counsel for the Class;
b. Issue preliminary and permanent injunctions against Defendants, their agents, officials, employees, and all persons acting in concert with them, requiring them to cease and desist from placing any women committed solely under Section 35 in a DOC facility;
c. Issue a judgment against Defendants declaring that the acts, omissions, policies, and practices of placing women committed solely under Section 35 to DOC facilities are unlawful and violate the Fourteenth Amendment to the United States Constitution, the Americans with Disabilities Act, the Constitution of the Commonwealth of Massachusetts, and Massachusetts law;
d. Award Plaintiff her reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12133, Mass. Gen. Laws ch. 93, § 103(d), Fed. R. Civ. P. 54(d), and other applicable law; and
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e. Grant Plaintiff such other and further relief as the Court considers

just and proper.

Dated: June 30, 2014

Respectfully submitted,

/s/ William F. Lee William F. Lee (BBO# 291960) Lisa J. Pirozzolo (BBO# 561922) Sean K. Thompson (BBO# 624880) WILMER CUTLER PICKERING HALE AND DORR, LLP 60 State Street Boston, MA 02109 Telephone: 617-526-6000 Facsimile: 617-526-5000 william.lee@wilmerhale.com lisa.pirozzolo@wilmerhale.com sean.thompson@wilmerhale.com
Matthew R. Segal (BBO# 654489) Jessie J. Rossman (BBO# 670685) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS 211 Congress Street, 3rd Floor Boston, MA 02110 Telephone: 617-482-3170 Facsimile: 617-451-0009 msegal@aclum.org jrossman@aclum.org

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Robert D. Fleischner (BBO# 171320) Samuel R. Miller (BBO# 624969)
(pro hac vice application forthcoming) CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 Telephone: 413-586-6024 Facsimile: 413-586-5711 rfleischner@cpr-ma.org smiller@cpr-ma.org James R. Pingeon (BBO# 541852) Bonita P. Tenneriello (BBO# 662132) PRISONERS’ LEGAL SERVICES 10 Winthrop Square, 3rd Floor Boston, MA 02110 Telephone: 617-482-2773 Facsimile: 617-451-6383 jpingeon@plsma.org btenneriello@plsma.org Attorneys for Plaintiff Jane Doe
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 Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 1 of 33

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

JANE DOE, JANE DOE 2, JANE DOE 3, JANE DOE 4, JANE DOE 5, JANE DOE 6, JANE DOE 7, and JANE DOE 8, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
CHARLES D. BAKER, Governor of the Commonwealth of Massachusetts; MASSACHUSETTS DEPARTMENT OF CORRECTION; CAROL HIGGINS O’BRIEN, Commissioner of the Massachusetts Department of Correction; and LYNN BISSONNETTE, Superintendent of the Massachusetts Correctional Institution at Framingham,
Defendants.

Civil Action No. 1:14-cv-12813-DPW

AMENDED CLASS ACTION COMPLAINT INTRODUCTION
1. Plaintiffs Jane Doe, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, and Jane Doe 8 (“Plaintiffs”)1 bring this lawsuit on behalf of themselves and all others who are or will be imprisoned at the Massachusetts Correctional Institution at Framingham (“MCI-Framingham”) solely because they have been civilly committed under Chapter 123, Section 35 of the Massachusetts General Laws (“Section 35”). These women are not being held because they have been charged

1 The uses of “Jane Doe” and “Jane Doe X” in this Complaint are as pseudonyms. 1

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with or convicted of any crime. They are committed solely for the explicit statutory purpose of Section 35: “inpatient care” of individuals at risk of “serious harm” resulting from their addiction. However, women sent to MCI-Framingham are not provided with “inpatient care.” They are put through a brief detoxification, and then they are simply incarcerated.
2. The staff at MCI-Framingham, from the Superintendent to the guards, treat women civilly committed under Section 35 as ordinary prisoners. Upon admission, the civilly committed women must submit to a strip search, which includes a visual inspection of their oral, anal, and vaginal cavities. Their personal property is taken from them. They are issued prison uniforms. Once confined, they are housed with women awaiting trial on criminal charges. They are subject to pat searches conducted by guards and cell “shakedowns.” They must stand by their bunk for regular “counts” four times a day, starting at 6 A.M.
3. Indeed, women civilly committed under Section 35 have less freedom than other prisoners confined at MCI-Framingham. Unlike convicted criminals and pretrial detainees, civilly committed women at MCI-Framingham are allowed to leave their unit only for medical and mental health appointments and for limited outdoor recreation in a small, unsheltered outdoor cage. They cannot pray at the chapel or participate in most recreational programs or organized activities.
4. Civilly committed women are barred from participating in the prison’s substance abuse treatment programs. Following detoxification, treatment is available
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only to women being held at MCI-Framingham because they have been charged with or convicted of crimes.
5. The imprisonment of women civilly committed to MCI-Framingham amounts to the criminalization of addiction, unnecessarily stigmatizing those who have an urgent medical need. Placing civilly committed women in prison, rather than an appropriate treatment facility, is traumatic and incompatible with professional judgment regarding the treatment of people with the disease of addiction. It occurs only because Massachusetts has chosen not to establish an adequate number of treatment beds in community facilities to meet the needs of civilly committed women.
6. Massachusetts is the only state in the country that imprisons people for drug or alcohol addiction. As former governor Deval Patrick has recognized, “treating those with substance abuse as prisoners is wrong.”2 It is also illegal. Treating Plaintiffs and other class members as criminals instead of as people with a disability requiring professional inpatient care violates their right to substantive due process, guaranteed by the Constitution of the United States, and their rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) to be free from discrimination.
7. For over two decades, multiple governmental advisory panels have recommended terminating the policy of incarcerating individuals committed under Section 35, yet Defendants have failed to act on any of those recommendations.
2 Remarks at Reform, Re-entry and Results: Change and Progress in the Massachusetts Criminal Justice System (Feb. 20, 2014), available at http://www.mass.gov/governor/pressoffice/speeches/0220-re-entry-forum-remarks.html.
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8. This class action seeks declaratory and injunctive relief prohibiting Defendants from continuing the unlawful practice of confining women civilly committed solely under Section 35 at MCI-Framingham and requiring Defendants to provide these individuals with “care and treatment of alcoholism or substance abuse” in a Department of Public Health (“DPH”) licensed facility in the community, as required by Section 35.
JURISDICTION & VENUE 9. This Court has jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331 and 1343. 10. Plaintiffs are entitled to declaratory and other relief deemed necessary and proper pursuant to 28 U.S.C. §§ 2201 and 2202. 11. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), as a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District.
THE PARTIES 12. Plaintiff Jane Doe has suffered from substance abuse addiction for multiple years. She was civilly committed to MCI-Framingham under Section 35 in June 2014. Ms. Doe was not charged with any crime. Ms. Doe was subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCIFramingham. She received no substance abuse treatment. 13. Plaintiff Jane Doe 2 has suffered from substance abuse for several years. She was civilly committed to MCI-Framingham under Section 35 in July 2014. Ms. Doe 2 was not charged with any crime. Ms. Doe 2 was subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham.
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14. Plaintiff Jane Doe 3 was civilly committed to MCI-Framingham under Section 35 in July 2014. Ms. Doe 3 was not charged with any crime. Ms. Doe 3 was subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham.
15. Plaintiff Jane Doe 4 has suffered from substance abuse addiction for many years. She was civilly committed to MCI-Framingham under Section 35 in January 2015. Ms. Doe 4 was not charged with any crime. She remains imprisoned in MCIFramingham as of the date of the filing of this Amended Complaint. Ms. Doe 4 is subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham. She is not currently receiving substance abuse treatment.
16. Plaintiff Jane Doe 5 has suffered from substance abuse addiction for many years. She was civilly committed to MCI-Framingham under Section 35 in January 2015. Ms. Doe 5 was not charged with any crime. She remains imprisoned in MCIFramingham as of the date of the filing of this Amended Complaint. Ms. Doe 5 is subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham. She is not currently receiving substance abuse treatment.
17. Plaintiff Jane Doe 6 has suffered from substance abuse addiction for many years. She was civilly committed to MCI-Framingham under Section 35 in January 2015. Ms. Doe 6 was not charged with any crime. She remains imprisoned in MCIFramingham as of the date of the filing of this Amended Complaint. Ms. Doe 6 is subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham. She is not currently receiving substance abuse treatment.
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18. Plaintiff Jane Doe 7 has suffered from substance abuse addiction for many years. She was civilly committed to MCI-Framingham under Section 35 in January 2015. Ms. Doe 7 was not charged with any crime. She remains imprisoned in MCIFramingham as of the date of the filing of this Amended Complaint. Ms. Doe 7 is subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham. She is not currently receiving substance abuse treatment.
19. Plaintiff Jane Doe 8 has suffered from substance abuse addiction for many years. She was civilly committed to MCI-Framingham under Section 35 in January 2015. Ms. Doe 8 was not charged with any crime. She remains imprisoned in MCIFramingham as of the date of the filing of this Amended Complaint. Ms. Doe 8 is subject to the same, if not harsher, treatment as the criminally charged and criminally convicted at MCI-Framingham. She is not currently receiving substance abuse treatment.
20. Defendant Charles D. Baker is the Governor of the Commonwealth of Massachusetts. Defendant Baker maintains an office at the Massachusetts State House, Office of the Governor, Room 280, Boston, Massachusetts 02133. Defendant Baker is sued in his official capacity.
21. Defendant Massachusetts Department of Correction (“DOC”) is an executive department of the Commonwealth of Massachusetts. It is a “public entity” within the meaning of the ADA. See 42 U.S.C. § 12131(1).
22. Defendant Carol Higgins O’Brien is the DOC Commissioner. By statute, Defendant O’Brien is designated responsible for the administration of all correctional facilities in Massachusetts. See Mass. Gen. Laws ch. 124, § 1. Defendant O’Brien
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maintains an office at DOC Central Headquarters, 50 Maple Street, Suite 3, Milford, Massachusetts 01757. Defendant O’Brien is sued in her official capacity.
23. Defendant Lynn Bissonnette is the Superintendent of MCI-Framingham. By statute, Defendant Bissonnette is designated “responsible for the custody and control of all prisoners” in MCI-Framingham. Mass. Gen. Laws ch. 125, § 14. Under DOC policy, she is “ultimately responsible for the overall functioning of the institution.” 103 DOC 101.01 (October 2013). Defendant Bissonnette maintains an office at MCIFramingham, 99 Loring Drive, P.O. Box 9007, Framingham, Massachusetts 01701. Defendant Bissonnette is sued in her official capacity.
CIVIL COMMITMENT UNDER SECTION 35 A. Statutory Framework of Section 35 24. Section 35 allows certain individuals to petition a district or juvenile court for the civil commitment of anyone whom the petitioner alleges is addicted to alcohol or a controlled substance and who allegedly presents a risk of danger to himself or herself or others due to his or her addiction. Mass. Gen. Laws ch. 123, § 35. 25. Section 35 defines a substance abuser or alcoholic as a person who “chronically or habitually” uses controlled substances or alcohol to the extent that “such use substantially injures his health or substantially interferes with his social or economic functioning . . . or . . . he has lost the power of self-control over the use of” controlled substances or alcohol. Id. 26. If a court finds, after a hearing and medical examination, that the individual is an alcoholic or substance abuser and that “there is a likelihood of serious harm as a result of the person’s alcoholism or substance abuse,” then the court may order
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the individual to be civilly committed. Id. The statutory period of commitment can be up to 90 days. Id.
27. Section 35 directs that these individuals shall receive “inpatient care in public or private facilities approved by [DPH] under [C]hapter 111B for the care and treatment of alcoholism or substance abuse.” Id. If “suitable facilities” under Chapter 111B are unavailable, the statute authorizes the civil commitment of women to MCIFramingham. Id.
28. DPH has failed to establish a sufficient number of “suitable facilities” to provide care and treatment to women committed under Section 35. As a result, since 2011, more than 540 civilly committed women have been incarcerated at MCIFramingham.
B. DPH Mandates for the Care of Section 35 Commitments 29. Chapter 111B of the Massachusetts General Laws requires DPH to establish a statewide program for the treatment of persons who are alcoholics. Mass. Gen. Laws ch. 111E, § 7 requires similar services for individuals with substance abuse disorders. 30. All facilities established under these statutes must be licensed or approved by DPH and comply with DPH minimum standards as set forth in 105 Code of Massachusetts Regulations (“CMR”) 164.001 et seq. These standards require that each resident receive an individualized treatment plan and at least four hours of treatment per day. 105 CMR 164.073-.074.
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31. Although each facility must have policies for managing disruptive behavior, “physical restraint[] in any form” is prohibited. 105 CMR 164.078(C). Each facility must also guarantee its client certain minimum rights, including the “freedom from strip searches and body cavity searches.” 105 CMR 164.079(B)(2).
32. Under its statutory authority, DPH funds High Point, a private vendor, to provide services for women civilly committed under Section 35 at the Women’s Addiction Treatment Center (“WATC”) in New Bedford, Massachusetts. WATC has approximately 90 beds.
33. The program operates acute treatment service beds for detoxification, “step-down” beds for those with less acute treatment needs, and transitional beds for those who have finished their commitment and choose to voluntarily stay until being placed in a half-way house. WATC is staff-secured, but not locked.
34. Every day, women committed at WATC are offered a variety of treatment and recovery options.
35. They are provided with substance abuse treatment programs throughout each day and into the evenings. These include individual and group counseling, family support and education, 12-step programs, trauma awareness, coping skills, and aftercare planning.
36. WATC also provides related programming on issues including relapse prevention, relationships, HIV awareness, domestic violence, nutrition, self-help, and recovery.
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37. Women committed at WATC meet with a case manager every day; most case managers have a master’s degree in social work or are licensed alcohol and drug counselors. Case management includes planning, goal development, and family unification services. Case managers facilitate referrals for physical and mental health care, legal issues, and vocational and educational needs.
38. WATC staff members assist women in transitioning to residential rehabilitation sites and discharge services.
39. During detoxification, women committed at WATC are provided with the full range of treatment protocols and medication, including methadone, Suboxone (buprenorphine and naloxone), or Vivitrol (naltrexone), based on individualized assessments.
40. Following detoxification, women committed at WATC live in four-person rooms and are allowed to personalize their spaces and have personal items.
41. During the initial stages of their stay, women are expected to remain within the facility and its outdoor patio area. Subsequently, they may be entitled to leave the facility during the day for volunteer work and other activities in the community.
C. MCI-Framingham 42. MCI-Framingham is the most secure prison for women in Massachusetts. It is not designed, equipped, or staffed to serve as a treatment facility for individuals with addiction.3
3 Commonwealth of Mass., Dep’t of Corr. Advisory Council, Final Report 5 (2005). 10

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43. The oldest female correctional institution operating in the United States, MCI-Framingham holds women awaiting trial or sentencing, as well as women serving sentences for serious crimes, including murder.
44. It is surrounded by high walls, two chain-link fences topped with razor wire, and armed guards who monitor the perimeter.
45. Although Mass. Gen. Laws ch. 125, § 16 requires that the DOC maintain at MCI-Framingham “a facility for the treatment and rehabilitation of alcoholics, subject to the approval of [DPH] under the provisions of [C]hapter [111B],” no such facility has been established.
46. Instead, women sent to MCI-Framingham solely due to civil commitment under Section 35 (sometimes called “straight civils”) are housed in the same facility with and treated like prisoners.
47. When women civilly committed under Section 35 first enter MCIFramingham, they are subject to the same intake procedures as convicted prisoners and pretrial detainees, including a strip search and a visual search of oral, anal, and vaginal cavities.
48. Their personal property is taken from them, and they are issued prison uniforms.
49. Detoxification services for all prisoners at MCI-Framingham are provided in the infirmary unit. During detoxification, women civilly committed under Section 35 may be placed in cells with pretrial detainees.
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50. The infirmary has one cell with five beds and an open toilet—which is visible not only to cellmates, but also from the nurses’ station and the hall—and a number of two- and three-person cells with an open toilet in the cell and windows to the hallway, affording little privacy.
51. The infirmary unit follows the DOC treatment protocols for opioid, benzodiazepine, and alcohol detoxification.
52. Consequently, the medications available to individuals going through detoxification at MCI-Framingham are very limited, unlike at DPH facilities.
53. For example, for women suffering from heroin withdrawal, MCIFramingham provides over-the-counter medication such as acetaminophen, ibuprofen, Tums, and Imodium,4 rather than many drugs federally-approved for use in the treatment of opioid addiction, such as methadone, Suboxone, or Vivitrol. 42 C.F.R. § 8.12(h)(2)(i), (iii).
54. After detoxification, which usually takes from one to five days, women civilly committed under Section 35 are housed with pretrial detainees and treated like prisoners. They are held in the Awaiting Trial Unit (“ATU”) or, when the pretrial census is too high for all to be accommodated in the ATU, the civilly committed women and overflow pretrial detainees are housed in a temporary modular building known as the “Mod.”5
4 The one exception to this policy is that pregnant women have access to methadone. 5 Some women are committed under Section 35 and have a criminal charge pending against them. These individuals are considered to have “dual status,” and are placed in prison. They may participate in a residential treatment program offered at MCI-
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55. In the ATU, civilly committed women are assigned to two-person cells, though they may not have a cellmate. They spend their days in an open unit together with women charged with crimes, including the most violent crimes such as murder, and they are locked in their cells overnight. While pretrial detainees in the ATU unit eat communally in the ATU’s “chow hall,” civilly committed women generally eat meals locked in their cells, except when they are permitted to eat breakfast in the ATU day room.
56. In the Mod, civilly committed women live in a 40-person dormitory along with pretrial detainees.
57. In both the ATU and the Mod, the women are supervised by uniformed correctional officers, some of whom mock the civilly committed women, refuse to give them access to medical help for symptoms associated with drug withdrawal, and seek to intimidate them when they complain.
58. Along with the standard prison conditions faced by all women at MCIFramingham, including strip searches, pat searches, cell shakedowns, regular “counts” four times a day, starting at 6 A.M., and the full range of DOC discipline (potentially including solitary confinement), the “straight civils” endure even harsher conditions of confinement than those convicted of crimes.
Framingham for pretrial detainees called “First Steps.” These dual status individuals are not members of the proposed class. Approximately one-third of all Section 35 commitments have a criminal charge pending. See Mass. Dep’t of Pub. Health, Bureau of Substance Abuse Servs., Sec 35 – Civil Commitments FY12 – Year End Report 4 (2012).
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59. Unlike other prisoners, civilly committed women do not have access to the prison campus and main recreation yard. Those housed in the ATU are able to use the ATU yard, a small caged area with a basketball hoop and three picnic tables, topped with razor wire. Those housed in the Mod are escorted to an outdoor recreation area consisting of a small cage covered in black netting with a gravel floor. There is often little or no shade, and the women are not allowed to have water in the cage. Access to the cage is limited to, at most, two and a half hours per day, six days per week.
60. These women also have no access to programs available to the rest of the prison population, including peer-directed groups such as Alcoholics Anonymous, Narcotics Anonymous, and peer counseling. Civilly committed women may not go to the prison chapel or make use of exercise equipment and other indoor facilities open to prisoners, except for limited use of the prison library. They spend the vast bulk of their time locked in their unit.
D. The Impact of Incarceration under Section 35 61. Imprisoning civilly committed women is counter-therapeutic. 62. Addiction is a complex brain disease characterized by the disruption of a person’s ability to control her behavior even in the face of devastating consequences. In numerous ways, imprisoning civilly committed people suffering from this disease can impede rather than advance effective treatment. 63. For example, civil commitment to MCI-Framingham is traumatic and stigmatizing. Women experience shame, humiliation, and loss of dignity.
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64. The women are often intimidated by the harsh conditions of confinement and can be nervous about being housed with individuals charged with serious crimes who sometimes threaten and assault them.
65. They do not understand why they are in prison when they were supposedly committed to receive treatment.
66. Incarcerating these women also reflects and perpetuates unwarranted prejudices about individuals with alcoholism and substance abuse disorders and reinforces the perception that they are second-class citizens. Indeed, even their family and friends often believe the women must have engaged in crime to end up in prison.
67. Their imprisonment undermines their self-image and causes them to experience fear and confusion regarding the purpose of their confinement.
68. Far from providing an opportunity to begin meaningful recovery, the imprisonment of women civilly committed to MCI-Framingham is punitive. They are simply warehoused and denied participation in programs available to sentenced prisoners and pretrial detainees.
69. Family members who file Section 35 petitions are often horrified, telling the DOC that they would not have initiated the process if they had known their loved one would be sent to prison. Women who self-petition seeking help for addiction are shocked to find themselves treated like criminals and denied treatment, and generally wish they had never initiated the proceeding.
70. Women civilly committed to MCI-Framingham under Section 35 are isolated from their communities both psychologically and physically. Because the prison
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is often far from their homes and families, and communication and visitation are restricted, it is difficult to establish relationships with aftercare services in their own communities.
71. By authorizing the civil commitment of women to prison, Section 35 reinforces longstanding societal prejudice against individuals with alcoholism and substance abuse disorders.
72. Defendants have long been aware that imprisoning civilly committed individuals is inconsistent not only with the proper treatment of addiction, but also with the proper mission of the DOC.
73. For example, in 1989, the Governor’s Special Advisory Panel on Forensic Mental Health recommended that “only individuals who are subjects of the criminal justice system” should be committed to prison under Section 35.6
74. In 2005, the Governor’s Corrections Advisory Council also recommended against committing women to MCI-Framingham under Section 35.7
75. In 2008 and again in 2011, an independent consultant retained by the DOC recommended that Massachusetts discontinue civil commitments to MCI-Framingham “as soon as possible.”8
6 Commonwealth of Mass., Governor’s Special Advisory Panel on Forensic Mental Health, Final Report 33 (1989). 7 Commonwealth of Mass., Dep’t of Corr. Advisory Council, Final Report 5 (2005). 8 MGT of America, Inc., Analysis of Health Care Costs in the Massachusetts Department of Correction 17, 78 (2011).
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76. Nevertheless, the Commonwealth has continued to fail to make sufficient beds available for these women in appropriate treatment facilities.
ALLEGATIONS RELATING TO PLAINTIFFS A. Plaintiff Jane Doe 77. Plaintiff Jane Doe has experienced all of the prison conditions above described. 78. After being civilly committed, Ms. Doe was transported in a police wagon to MCI-Framingham. 79. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus. She was also forced to sit on a body orifice security scanner chair. 80. Ms. Doe was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform. 81. Ms. Doe was sent to the infirmary unit for detoxification. She was given only over-the-counter medications for her withdrawal symptoms. 82. After detoxification, she was moved to the Mod. 83. Ms. Doe was locked in the Mod for the majority of her days at MCIFramingham. 84. Ms. Doe declined to visit the unshaded recreational space referred to as the “Kennel” because it is hot and the correctional officers do not provide civilly committed women with water while they are in the Kennel.
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85. Ms. Doe did not meet with a caseworker or a mental health counselor during her incarceration at MCI-Framingham.
86. She also has received no substance abuse treatment during her incarceration at MCI-Framingham.
87. Ms. Doe experienced increased anxiety after her arrival at MCIFramingham, particularly due to the uncertainty regarding when she would leave MCIFramingham and receive treatment.
B. Plaintiff Jane Doe 2 88. Plaintiff Jane Doe 2 has experienced all of the prison conditions above described. 89. After being civilly committed, Ms. Doe 2 was transported in a police wagon to MCI-Framingham. 90. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus. 91. Ms. Doe 2 was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform. 92. Ms. Doe 2 was sent to the infirmary unit for detoxification. She was given only over-the-counter medications for her withdrawal symptoms. 93. After detoxification, she was moved to the Mod. 94. Ms. Doe 2 was locked in the Mod for the majority of her days at MCIFramingham.
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95. Ms. Doe 2 declined to visit the Kennel because it is simply a gravel-lined cage.
96. Ms. Doe 2 did not meet with a caseworker or a mental health counselor during her incarceration at MCI-Framingham.
97. She also received no substance abuse treatment during her incarceration at MCI-Framingham.
98. Ms. Doe 2 experienced increased anxiety after her arrival at MCIFramingham, particularly because she was housed in the same unit as pretrial detainees, and because of the uncertainty regarding when she would leave MCI-Framingham.
C. Plaintiff Jane Doe 3 99. Plaintiff Jane Doe 3 has experienced all of the prison conditions above described. 100. After being civilly committed, Ms. Doe 3 was transported in a police wagon to MCI-Framingham. 101. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus. She was also forced to sit on a body orifice security scanner chair. 102. Ms. Doe 3 was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform. 103. Ms. Doe 3 was sent to the infirmary unit for detoxification. The only medications she received were for her withdrawal symptoms.
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104. After detoxification, she was moved to the Mod. 105. Ms. Doe 3 was locked in the Mod for the majority of her days at MCIFramingham. 106. Ms. Doe 3 only visited the Mod’s recreation area once, after which she declined to make subsequent visits. 107. Ms. Doe 3 did not meet with a caseworker or a mental health counselor during her incarceration at MCI-Framingham. 108. She also received no substance abuse treatment during her incarceration at MCI-Framingham. 109. Ms. Doe 3 experienced increased anxiety after her arrival at MCIFramingham, particularly because she was housed in the same unit as pretrial detainees, and because of the uncertainty regarding when she would leave MCI-Framingham and receive treatment. D. Plaintiff Jane Doe 4 110. Plaintiff Jane Doe 4 has experienced all of the prison conditions above described. 111. After being civilly committed, Ms. Doe 4 was transported in a police wagon to MCI-Framingham. 112. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus.
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113. Ms. Doe 4 was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform.
114. Ms. Doe 4 was sent to the infirmary unit for detoxification. 115. After detoxification, she was moved to the Awaiting Trial Unit-East. 116. Ms. Doe 4 has been in the ATU-E for the majority of her days at MCIFramingham. She is housed alone in a cell with two bunk beds. Like other civilly committed women in ATU-E, but unlike pretrial detainees, she eats meals alone in her cell except that she and the other civilly committed women are sometimes allowed to eat breakfast in the ATU-E day room. 117. Ms. Doe 4 and the other women in ATU-E are locked in their cells from about 9:00 pm until about 7:00 a.m., and at various points during the day. All of them must stand for “counts” several times during the day. 118. Ms. Doe 4 and other civilly committed women in ATU-E leave the unit only for medical and mental health appointments, for visits (if they receive any), and, if they choose, for a weekly visit to the library. Ms. Doe 4 has not been able to visit the library. 119. Ms. Doe 4 has received no substance abuse treatment during her incarceration at MCI-Framingham. She and the other civilly committed women in ATUEast are not allowed to attend the Narcotics Anonymous and Alcoholics Anonymous meetings that are available to the pretrial women housed in the same unit. 120. The only program available to Ms. Doe 4 and other civilly committed women in the ATU-E is a weekly one-hour group session on addiction conducted by a
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mental health worker. Otherwise there have no access to recreational, educational or vocational programs. Prison chaplains visit the unit but the civilly committed women are not permitted to leave the unit to attend services in the prison chapel.
121. Ms. Doe 4 is distraught over being incarcerated because she feels her time at MCI-Framingham is like a bad dream.
E. Plaintiff Jane Doe 5 122. Plaintiff Jane Doe 5 has experienced all of the prison conditions above described. 123. After being civilly committed, Ms. Doe 5 was transported in a police wagon to MCI-Framingham. 124. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus. 125. Ms. Doe 5 was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform. 126. Ms. Doe 5 was sent to the infirmary unit for detoxification. Before incarceration, she was prescribed several medications that she has not received while incarcerated. 127. After detoxification, she was moved to ATU-E. 128. Ms. Doe 5 has been housed by herself in a cell with two bunks. She is subject to all of the conditions and treatment described by Ms. Doe 4, including eating most meals alone in her cell, being locked-in overnight and for periods during the day,
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and being subject to “counts.” 129. Her inability to leave the unit and her lack of access to recreation and
programs are the same as described by Ms. Doe 4. 130. Being in prison is extremely distressing for her because she feels like she
is treated just like an inmate and it is demeaning. She was told that, like inmates, civilly committed women can be written up for having a cup in their room, resulting in them being moved to the “back of the list” for release.
131. She has PTSD due to a violent attack on her some years ago, which makes incarceration stressful for her. Being in MCI-F with inmates that have done very cruel things has made her feel like she has to be very careful and look over her should all the time. She feels like she was just discarded and has cried alone in her cell every day she has been at MCI-F.
F. Plaintiff Jane Doe 6 132. Plaintiff Jane Doe 6 has experienced all of the prison conditions above described. 133. After being civilly committed, Ms. Doe 6was transported in a police wagon to MCI-Framingham. 134. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus. 135. Ms. Doe 6 was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform.
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Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 24 of 33
136. Ms. Doe 6 was sent to the infirmary unit for detoxification. 137. While in the infirmary unit, she was locked in a room with two other women, one of whom was criminally charged. She was sent to the ATU-E for one day, and then returned to detox because she could not hold food down. 138. After detoxification, she was moved to ATU-E. 139. Ms. Doe 6 has been housed by herself in a cell with two bunks. She is subject to all of the conditions and treatment described by Ms. Doe 4, including eating most meals alone in her cell, being locked-in overnight and for periods during the day, and being subject to “counts.” 140. Her inability to leave the unit and her lack of access to recreation and programs are the same as described by Ms. Doe 4. 141. Ms. Doe 6 has previously been diagnosed with anxiety disorder and mood disorder. She has submitted two requests to see a mental health counsellor but, after two weeks of incarceration she still had not seen one. 142. Ms. Doe 6 believes that prison is making her addiction worse, instead of treating it, and that she would have been more respected had she actually committed a crime. She hopes to be admitted into an outpatient program on release, and fears that if she finishes her commitment without receiving treatment that she will return to abusing drugs. G. Plaintiff Jane Doe 7 143. Plaintiff Jane Doe 7 has experienced all of the prison conditions above described.
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Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 25 of 33
144. After being civilly committed, Ms. Doe 7 was transported in a police wagon to MCI-Framingham.
145. She was subject to the same prison intake procedure as the criminally charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus.
146. Ms. Doe 7 was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform.
147. Ms. Doe 7 was sent to the infirmary unit for detoxification. She spent two days detoxing in a cell by herself. Before incarceration, she was prescribed several medications that she has not received while incarcerated.
148. After detoxification, Ms. Doe 7 was sent to the ATU-E. 149. Ms. Doe 7 has been housed by herself in a cell with two bunks. She is subject to all of the conditions and treatment described by Ms. Doe 4, including eating most meals alone in her cell, being locked-in overnight and for periods during the day, and being subject to “counts.” 150. Her inability to leave the unit and her lack of access to recreation and programs are the same as described by Ms. Doe 4. 151. Ms. Doe 7 feels extremely vulnerable being housed with criminally charged women. She is housed in the same unit as an accused murderer and feels threatened and vulnerable because she is small. H. Plaintiff Jane Doe 8. 152. Plaintiff Jane Doe 8 has experienced all of the prison conditions above
25

Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 26 of 33
described. 153. After being civilly committed, Ms. Doe 8 was transported in a police
wagon to MCI-Framingham. 154. She was subject to the same prison intake procedure as the criminally
charged and criminally convicted women, including a strip search and a visual examination of her mouth, vagina, and anus.
155. Ms. Doe 8 was forced to turn over all of her personal items, including her clothing, and was forced to wear a prison uniform
156. Ms. Doe 8 was sent to the infirmary unit for detoxification. 157. After detoxification, Ms. Doe 8 was sent to the ATU-E. 158. Ms. Doe 8 has been housed by herself in a cell with two bunks. She is subject to all of the conditions and treatment described by Ms. Doe 4, including eating most meals alone in her cell, being locked-in overnight and for periods during the day, and being subject to “counts.” 159. Her inability to leave the unit and her lack of access to recreation and programs are the same as described by Ms. Doe 4 160. Ms. Doe 8 did not want to be committed to MCI-Framingham; she had previously been sectioned to WATC and when she heard the WATC beds were full, she regretted sectioning herself and would have preferred to be on the street. She had previously received residential addiction treatment at MCI-Framingham during a brief period as a pretrial detainee, so she expected to have the same treatment when she was committed. She was shocked to be incarcerated with no treatment, because she believed
26

Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 27 of 33
the system knew what it was doing and she had received treatment as a pretrial detainee. 161. Ms. Doe 8 has been diagnosed with anxiety disorder and depression. She
has asked for an appointment with a mental health counsellor twice, but she has not been able to see one.
162. Ms. Doe 8 feels she has been subject to inhumane treatment at MCIFramingham and treated like a criminal in every way. She will never again agree to be civilly committed due to this experience.
CLASS ACTION ALLEGATIONS 163. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 164. The class is defined as: “All women who are now or will be civilly held at MCI-Framingham based solely on an order under Massachusetts General Laws Chapter 123, Section 35.” See Dkt. 49 (granting Dkt. 43, Plaintiff’s Assented to Motion to Amend Motion to Certify Class).
CLAIMS FOR RELIEF COUNT I
Violation of Substantive Due Process Guaranteed by the Fourteenth Amendment to the United States Constitution 165. Plaintiffs incorporate the preceding paragraphs of this complaint as if fully set forth herein. 166. The Fourteenth Amendment to the United States Constitution provides that “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”
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Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 28 of 33
167. Plaintiffs have a liberty interest in not being unjustly incarcerated in prison.
168. Plaintiffs’ incarceration in prison represents a substantial departure from accepted professional judgment, practice, or standards. Plaintiffs’ incarceration does not bear any reasonable relation to the purpose of Section 35, which, according to the statute, is to provide for “the care and treatment of alcoholism or substance abuse.”
169. By their policies, practices, and actions, Defendants violate the rights of Plaintiffs, as well as all members of the proposed Class, to substantive due process guaranteed by the Fourteenth Amendment to the United States Constitution, as enforceable under 42 U.S.C. § 1983.
170. Plaintiffs have suffered immediate and irreparable injury as a result of the unlawful acts, omissions, policies, and practices of Defendants as alleged herein and will continue to suffer that harm unless class-wide relief is granted.
171. Plaintiffs have no adequate remedy at law to protect herself and those similarly situated from this harm. The injunctive relief sought by Plaintiffs is necessary to prevent continued and further injury.
COUNT II Violation of Title II of the Americans with Disabilities Act 172. Plaintiffs incorporate the preceding paragraphs of this complaint as if fully set forth herein. 173. Title II of the ADA prohibits a “public entity” from discriminating against a “qualified individual with a disability . . . by reason of such disability.” 42 U.S.C. § 12132.
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174. Plaintiffs, as individuals committed under Section 35 for substance addiction, are each a “qualified individual with a disability” under Title II of the ADA, as defined in 42 U.S.C. § 12131(2) and § 12102(1).
175. Defendant DOC is a “public entity” under Title II of the ADA, as defined in 42 U.S.C. § 12131(1).
176. Under Section 35, Plaintiffs were placed in prison solely because of their disabilities. Plaintiffs were not committed because of a criminal charge or conviction. No other citizens in Massachusetts are forced to endure such unjustified incarceration as a condition of receiving needed medical treatment.
177. The imprisonment of Plaintiffs under Section 35, including the imprisonment of all members of the proposed Class, violates Title II of the ADA by subjecting Plaintiffs to discrimination solely on the basis of their disabilities.
178. Plaintiffs have suffered immediate and irreparable injury as a result of the unlawful acts, omissions, policies, and practices of Defendants as alleged herein and will continue to suffer that harm unless class-wide relief is granted.
179. Plaintiffs have no adequate remedy at law to protect themselves and those similarly situated from this harm. The injunctive relief sought by Plaintiffs is necessary to prevent continued and further injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully requests that this Court grant the following relief:
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a. Issue preliminary and permanent injunctions against Defendants, their agents, officials, employees, and all persons acting in concert with them, requiring them to cease and desist from placing any women committed solely under Section 35 in a DOC facility;
b. Issue a judgment against Defendants declaring that the acts, omissions, policies, and practices of placing women committed solely under Section 35 to DOC facilities are unlawful and violate the Fourteenth Amendment to the United States Constitution and the Americans with Disabilities Act;
c. Award Plaintiffs their reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12133, Mass. Gen. Laws ch. 93, § 103(d), Fed. R. Civ. P. 54(d), and other applicable law; and
d. Grant Plaintiffs such other and further relief as the Court considers just and proper.
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Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 31 of 33

Dated: January 27, 2015

Respectfully submitted,
/s/ William F. Lee William F. Lee (BBO# 291960) Lisa J. Pirozzolo (BBO# 561922) Sean K. Thompson (BBO# 624880) WILMER CUTLER PICKERING HALE AND DORR, LLP 60 State Street Boston, MA 02109 Telephone: 617-526-6000 Facsimile: 617-526-5000 william.lee@wilmerhale.com lisa.pirozzolo@wilmerhale.com sean.thompson@wilmerhale.com
Matthew R. Segal (BBO# 654489) Jessie J. Rossman (BBO# 670685) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS 211 Congress Street, 3rd Floor Boston, MA 02110 Telephone: 617-482-3170 Facsimile: 617-451-0009 msegal@aclum.org jrossman@aclum.org

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Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 32 of 33
Robert D. Fleischner (BBO# 171320) Samuel R. Miller (BBO# 624969)
(pro hac vice) CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 Telephone: 413-586-6024 Facsimile: 413-586-5711 rfleischner@cpr-ma.org smiller@cpr-ma.org
James R. Pingeon (BBO# 541852) Bonita P. Tenneriello (BBO# 662132) PRISONERS’ LEGAL SERVICES 10 Winthrop Square, 3rd Floor Boston, MA 02110 Telephone: 617-482-2773 Facsimile: 617-451-6383 jpingeon@plsma.org btenneriello@plsma.org Attorneys for Plaintiffs and the Class
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Case 1:14-cv-12813-DPW Document 54 Filed 01/27/15 Page 33 of 33 Certificate of Service
I hereby certify that this document filed through the CM/ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on January 27, 2015.
/s/ William F. Lee William F. Lee
33

 
 Case 1:14-cv-12813-DPW Document 86 Filed 05/02/16 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Jane DOES 1 through 8, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
Charles D. BAKER, in his official capacity as Governor of the Commonwealth of Massachusetts;
Thomas TURCO, in his official capacity as Commissioner of the Massachusetts Department of Correction;
Paul HENDERSON, in his official capacity as Superintendent of the Massachusetts Correctional Institution at Framingham, and
The MASSACHUSETTS DEPARTMENT OF CORRECTION,
Defendants.

CIVIL ACTION No. 1:14-cv-12813-DPW

DEFENDANTS’ MOTION TO DISMISS CASE AS MOOT UNDER FED. R. CIV. P. 12(b)(1)
Defendants Charles D. Baker, Thomas Turco, and Paul Henderson, all in their official capacities, and the Massachusetts Department of Correction (the “DOC”), respectfully move this Court to enter an order dismissing this case for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) because it is moot.

Case 1:14-cv-12813-DPW Document 86 Filed 05/02/16 Page 2 of 4
This case is about a controversy and class that no longer exist. Plaintiffs filed suit to challenge the civil commitment of women to the Massachusetts Correctional Institution at Framingham (“MCI-Framingham”) pursuant to Mass. Gen. L. ch. 123, § 35 (“Section 35”). At that time, Section 35 expressly authorized state judges to civilly commit women to MCIFramingham to address alcohol or substance abuse issues if no other suitable inpatient treatment facilities were available. Almost two years ago, this Court certified Plaintiffs as a class of women who were—or will be—civilly committed to MCI-Framingham. Circumstances have changed and the premise of this action no longer exists. Effective April 24, 2016, Section 35’s text changed and it no longer authorizes commitments to MCI-Framingham but only to approved treatment facilities, which MCI-Framingham is not.
This case is thus moot because: (a) no woman is presently committed to MCIFramingham pursuant to Section 35; (b) Section 35 no longer permits such civil commitments; and (c) there is no current member of Plaintiffs’ class. Thus, there is no longer any case or controversy under Article III of the Constitution, depriving this Court of subject matter jurisdiction. In further support of this Motion, the Defendants rely upon their Memorandum of Reasons submitted contemporaneous with this Motion.
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WHEREFORE, the State Defendants respectfully request that this Court enter an order DISMISSING this case without prejudice pursuant to Fed. R. Civ. P. 12(b)(1).

Respectfully submitted,

Charles D. BAKER, in his official capacity as the Governor of the Commonwealth of Massachusetts,

Thomas TURCO, in his official capacity as Commissioner of the Massachusetts Department of Correction,

Paul HENDERSON, in his official capacity as Superintendent of the Massachusetts Correctional Institute at Framingham, and

The MASSACHUSETTS DEPARTMENT OF CORRECTION,

By their attorneys,

MAURA HEALEY ATTORNEY GENERAL

May 2, 2016

/s/ Bryan F. Bertram Kenneth Y. Lee (BBO No. 644653) Bryan F. Bertram (BBO No. 667102) Assistant Attorneys General Government Bureau Office of the Attorney General One Ashburton Place Boston, MA 02108-1518 (617) 727-2200 Kenneth.Lee@state.ma.us Bryan.Bertram@state.ma.us

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Case 1:14-cv-12813-DPW Document 86 Filed 05/02/16 Page 4 of 4

CERTIFICATION PURSUANT TO LOCAL RULE 7.1(a)(2)
Undersigned counsel certifies that, pursuant to Local Rule 7.1(a)(2), he has conferred with counsel for the Plaintiffs and has attempted in good faith to resolve or narrow the issues presented in this motion. The parties were unable to resolve the issues and the Defendants now file this motion in accord with an order of this Court
/s/ Bryan F. Bertram Bryan F. Bertram BBO No. 667102

CERTIFICATE OF SERVICE

I, Bryan F. Bertram, hereby certify that, this 2nd day of May, 2016, I filed the foregoing documents through the Electronic Case Filing (ECF) system and thus copies of the foregoing will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF); paper copies will be sent, via first-class mail, to those indicated as non-registered participants.

/s/ Bryan F. Bertram

_

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 Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 1 of 8
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

JANE DOE, JANE DOE 2, JANE DOE 3, JANE DOE 4, JANE DOE 5, JANE DOE 6, JANE DOE 7, and JANE DOE 8, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
CHARLES D. BAKER, Governor of the Commonwealth of Massachusetts; MASSACHUSETTS DEPARTMENT OF CORRECTION; THOMAS TURCO, Commissioner of the Massachusetts Department of Correction; and PAUL HENDERSON, Superintendent of the Massachusetts Correctional Institution at Framingham,
Defendants.

Civil Action No. 1:14-cv-12813-DPW

PLAINTIFFS’ RESPONSE TO THE COURT’S JUNE 13TH DOCKET ENTRY

Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 2 of 8
INTRODUCTION This submission responds to the Court’s question, both at the motion hearing on June 10, 2016, and in a docket entry dated June 13, 2016 (Dkt. 91), about how best to address the interpretation of amended Section 35. At the June 10 motion hearing, the Court posited that further amendment of the complaint might be necessary to frame the crucial statutory construction issue. Mot. Hr’g Tr. 19:3-20, 24:9-19. But the Court also invited the parties to propose “something different” that might be a more appropriate vehicle for resolving that issue. Tr. 24:22-25. Through this submission, Plaintiffs suggest that a claim for declaratory relief is adequately presented in the existing complaint, and that a motion for partial summary judgment would be a better vehicle for addressing the statutory interpretation question. In the alternative, Plaintiffs could seek to dismiss the case voluntarily, conditioned on the Court’s determination under Rule 23(e) of the Federal Rules of Civil Procedure that dismissal would be fair to the class because amended Section 35 now proscribes civil commitment to MCI-Framingham. Plaintiffs are prepared to file either of these documents, and therefore seek the Court’s guidance as to which one it prefers. I. FURTHER AMENDMENT OF THE COMPLAINT IS NOT WARRANTED On June 10, 2016, this Court denied Defendants’ motion to dismiss this case as moot, after Defendants took the position that amended Section 35 still permits women to be imprisoned at MCI-Framingham based solely on a civil commitment, “[i]f DPH or DMH approves it.” Tr. 5:2-9. Thus, the case centers on Plaintiffs’ amended complaint of January 27, 2015 (Dkt. 54), and a certified class of “[a]ll women who are now or will be civilly held at MCI-Framingham based solely on [a Section 35 order].” See Dkt. 43; 49. The January 2015 amended complaint alleges that incarcerating Plaintiffs at MCI-Framingham violates substantive due process (Count I) and the Americans with Disabilities Act (Count II). See Dkt. 54 ¶¶ 165-179. It specifically
1

Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 3 of 8
seeks a declaratory judgment that “placing women committed solely under Section 35 to DOC
facilities [is] unlawful.” See Dkt. 54 ¶ b.1
A further amendment would not present a better vehicle for issuing a declaration that
imprisoning women under the new Section 35 is unlawful. At present, there are no women
imprisoned at MCI-Framingham based solely on a civil commitment under Section 35. There is,
accordingly, “every reason to believe” that a further amendment would trigger a motion to
dismiss on ripeness, standing, and possibly other grounds. Tr. 19:3-20:4. Such a motion would
substantially delay—and, if successful, perhaps foreclose—any ruling on what amended Section
35 means. In contrast, the existing complaint already presents the following options for reaching
that question.2
II. A SUMMARY JUDGMENT MOTION WOULD SQUARELY RAISE THE QUESTION OF WHETHER AMENDED SECTION 35 PROHIBITS IMPRISONING CIVILLY COMMITTED WOMEN
Plaintiffs are prepared to move for partial summary judgment on the substantive due
process claim in the existing amended complaint.
1 The complaint requests declaratory relief without explicitly citing the Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201-2202. This is no impediment to granting relief. See Katzenbach v. McClung, 379 U.S. 294, 295 (1964) (where plaintiffs sought to enjoin enforcement of Title II of Civil Rights Act of 1964, construing complaint as application for declaratory judgment under DJA); Schultz v. Kelly, 188 F. Supp. 2d 38, 44 (D. Mass. 2002) (failure to invoke DJA “is of no moment,” especially given “ the court’s understanding that the DJA, as designed, would enable the parties to clarify their legal rights and obligations before acting upon them further.”). Cf. Fed. R. Civ. P. 54(c) (a non-default judgment “should grant the relief to which [a] party is entitled, even if the party has not demanded that relief in its pleadings.”) (emphases added); 57 (“The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate.”). 2 Moreover, nothing prevents Defendants from moving independently or cross-moving for summary judgment or bringing additional motions under Rule 12(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 56(b) (“a party may file a motion for summary judgment at any time until 30 days after the close of all discovery”); 12(h)(1) (providing that waiver does not apply to motions under Rules 12(b)(1) and 12(b)(6), among others).
2

Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 4 of 8
The amended complaint alleges that incarcerating civilly committed women violates substantive due process because it “does not bear any reasonable relation to the purpose of Section 35.” Dkt. 54 ¶ 168. Cf. Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (civilly committed individuals “enjoy[] constitutionally protected interests” in having their “conditions of confinement . . . comport fully with the purpose of [the] commitment”); Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1122 (9th Cir. 2003) (holding incapacitated criminal defendants in jail instead of hospital violates due process because nature and duration of incarceration bear no reasonable relation to purposes of commitment). If amended Section 35 prohibits civil commitments to MCI-Framingham, then Plaintiffs can arguably prevail on their substantive due process claim as a matter of law, because Defendants could not contend that imprisoning civilly committed women has any reasonable relationship to the purposes of Section 35.
Accordingly, if Plaintiffs move for summary judgment on the substantive due process claim, this Court could order briefing and argument, and render a decision on the meaning of amended Section 35 as an essential step in addressing that motion. See Tr. 18:10-15.
If, however, the Court agrees with Defendants that amended Section 35 does not prohibit imprisoning civilly committed women, then the Court could go on to address Defendants’ claim that the voluntary cessation argument should not prevent the case from being dismissed as moot. III. IN THE ALTERNATIVE, A CONDITIONAL MOTION TO DISMISS
VOLUNTARILY COULD SQUARELY RAISE THE QUESTION OF WHETHER AMENDED SECTION 35 PROHIBITS IMPRISONING CIVILLY COMMITTED WOMEN As an alternative to a summary judgment motion, the Court could determine the meaning of amended Section 35 in the context of resolving a voluntary motion to dismiss that is expressly conditioned on addressing the statutory construction issue. Plaintiffs could file a voluntary motion to dismiss conditioned upon the Court’s finding under Rule 23(e) that dismissal would be
3

Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 5 of 8
fair and reasonable to the class because amended Section 35 completely bars civil commitment at MCI-Framingham. Cf. Fed. Sav. & Loan Ins. Corp. v. First Nat. Bank, Liberty, Mo., 4 F.R.D. 313, 315 (W.D. Mo. 1945) (recognizing plaintiff’s right to condition request for voluntary dismissal under Federal Rule of Civil Procedure 41). This motion would be accompanied by a memorandum of law addressing the statutory construction issue, and the Court could order additional briefing from the Defendants on this issue as well.
CONCLUSION As this Court has noted, the question of amended Section 35’s meaning has already been “teed up.” Tr. 5:10-22. Further amending the complaint will divert the litigation away from this central issue and prolong the time before the Court can interpret the statute. In contrast, the alternative methods described above will quickly enable the Court to hone in on the question of whether amended Section 35 now prohibits imprisoning civilly committed women. Plaintiffs therefore respectfully request the Court’s guidance on its preferred approach and a briefing schedule consistent with that approach. Under either approach, Plaintiffs are prepared to file papers within four weeks and would be willing to coordinate schedules with Defendants.3
3 Plaintiffs certify that they conferred with counsel for Defendants in a good faith attempt to resolve the issues raised in this submission. Plaintiffs’ understanding is that Defendants are not yet taking a position on the issues until after Defendants have had an opportunity to review this submission.
4

Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 6 of 8

Dated: June 24, 2016

Respectfully submitted,
/s/ William F. Lee William F. Lee (BBO# 291960) Lisa J. Pirozzolo (BBO# 561922) WILMER CUTLER PICKERING HALE AND DORR, LLP 60 State Street Boston, MA 02109 Telephone: 617-526-6000 Facsimile: 617-526-5000 william.lee@wilmerhale.com lisa.pirozzolo@wilmerhale.com
Matthew R. Segal (BBO# 654489) Jessie J. Rossman (BBO# 670685) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS 211 Congress Street, 3rd Floor Boston, MA 02110 Telephone: 617-482-3170 Facsimile: 617-451-0009 msegal@aclum.org jrossman@aclum.org

5

Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 7 of 8
Robert D. Fleischner (BBO# 171320) Sandra J. Staub (BBO# 555544) CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 Telephone: 413-586-6024 Facsimile: 413-586-5711 rfleischner@cpr-ma.org sstaub@cpr-ma.org James R. Pingeon (BBO# 541852) Bonita P. Tenneriello (BBO# 662132) PRISONERS’ LEGAL SERVICES 10 Winthrop Square, 3rd Floor Boston, MA 02110 Telephone: 617-482-2773 Facsimile: 617-451-6383 jpingeon@plsma.org btenneriello@plsma.org Attorneys for Plaintiffs and the Class
6

Case 1:14-cv-12813-DPW Document 94 Filed 06/24/16 Page 8 of 8
Certificate of Service I hereby certify that this document filed through the CM/ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing.
/s/ William F. Lee William F. Lee

 
 Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 1 of 11
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:14−cv−12813−DPW

CLOSED

Doe v. Patrick, et al. Assigned to: Judge Douglas P. Woodlock Cause: 42:1983 Civil Rights Act
Plaintiff Jane Does 1−8 Individually and on behalf of all others similarly situated

Date Filed: 06/30/2014 Date Terminated: 03/31/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by James R. Pingeon Prisoners Legal Services Inc. 10 Winthrop Sq. Boston, MA 02110 617−482−2773 Fax: 617−451−6383 Email: jpingeon@plsma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Lee Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6556 Fax: 617−526−5000 Email: william.lee@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bonita P. Tenneriello Prisoners' Legal Services 10 Winthrop Square, 3rd Flr. Boston, MA 02110 617−482−2773 ext 106 Fax: 617−451−6383 Email: btenneriello@plsma.org ATTORNEY TO BE NOTICED
Jessie J. Rossman ACLU of Massachusetts 211 Congress Street 3rd Flr. Boston, MA 02110 617−482−3170 Email: jrossman@aclum.org ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6388 Fax: 617−526−5000 Email: lisa.pirozzolo@wilmerhale.com ATTORNEY TO BE NOTICED
Matthew Segal American Civil Liberties Union 211 Congress Street

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 2 of 11
Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: msegal@aclum.org ATTORNEY TO BE NOTICED
Robert D. Fleischner Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5211 Email: rfleischner@cpr−ma.org ATTORNEY TO BE NOTICED
Samuel R. Miller The Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586−6024 Email: smiller@cpr−ma.org TERMINATED: 05/11/2015 ATTORNEY TO BE NOTICED
Sandra J. Staub Center for Public Representation 22 Green Street 22 Green Street Northampton, MA 01060 United Sta 413−586−6024 Fax: 413−586−5711 Email: sstaub@cpr−ma.org ATTORNEY TO BE NOTICED
Sean K. Thompson Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6000 Email: sean.thompson@wilmerhale.com TERMINATED: 02/19/2016 ATTORNEY TO BE NOTICED

V.
Defendant
Deval Patrick Governor of the Commonwealth of Massachusetts TERMINATED: 01/28/2015

represented by John Michael Stephan Office of the Attorney General One Ashburton Place Boston, MA 02108 617−727−2200 Email: john.stephan@state.ma.us TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryan F. Bertram Office of Attorney General Martha Coakley One Ashburton Place Boston, MA 02108 617−963−2107

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 3 of 11

Email: bryan.bertram@state.ma.us ATTORNEY TO BE NOTICED

Dennis N. D'Angelo Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−963−2881 Email: dennis.dangelo@massmail.state.ma.us TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED

Defendant
Luis S. Spencer Commissioner of the Massachusetts Department of Correction TERMINATED: 01/28/2015

represented by John Michael Stephan Office of the Attorney General Martha Coakley One Ashburton Place Boston, MA 02108 617−727−2200 Email: john.stephan@state.ma.us TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William D. Saltzman Commonwealth of Massachusetts, Department of Correction 70 Franklin Street Suite 600 Boston, MA 02110 617−727−3300 Ext. 154 Fax: 617−727−4703 Email: wdsaltzman@doc.state.ma.us TERMINATED: 08/12/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan F. Bertram (See above for address) ATTORNEY TO BE NOTICED

Dennis N. D'Angelo (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED

Michael H. Cohen 1 Sierra Drive South Easton, MA 02375 (508) 216−4566 Email: mikeron03@gmail.com TERMINATED: 08/12/2014 ATTORNEY TO BE NOTICED

Defendant
Massachusetts Department of Correction DOC Central Headquarters

represented by John Michael Stephan (See above for address) TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William D. Saltzman (See above for address)

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 4 of 11

TERMINATED: 08/12/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan F. Bertram (See above for address) ATTORNEY TO BE NOTICED

Dennis N. D'Angelo (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED

Kenneth Y. Lee Office of the Attorney General Trial Division One Ashburton Place 18th Floor Boston, MA 02108 617.727−2200 Email: kenneth.lee@state.ma.us TERMINATED: 08/19/2016 ATTORNEY TO BE NOTICED

Michael H. Cohen (See above for address) TERMINATED: 08/12/2014 ATTORNEY TO BE NOTICED

Defendant
Lynn Bissonnette Superintendent of the Massachusetts Correctional Institution at Framingham

represented by John Michael Stephan (See above for address) TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William D. Saltzman (See above for address) TERMINATED: 08/12/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan F. Bertram (See above for address) ATTORNEY TO BE NOTICED

Dennis N. D'Angelo (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED

Kenneth Y. Lee (See above for address) TERMINATED: 08/19/2016 ATTORNEY TO BE NOTICED

Michael H. Cohen (See above for address) TERMINATED: 08/12/2014 ATTORNEY TO BE NOTICED

Defendant
Charles D. Baker Governor of the Commonwealth of

represented by John Michael Stephan (See above for address)

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 5 of 11

Massachusetts

TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan F. Bertram (See above for address) ATTORNEY TO BE NOTICED

Kenneth Y. Lee (See above for address) TERMINATED: 08/19/2016 ATTORNEY TO BE NOTICED

Defendant
Carol Higgins O'Brien Commissioner of the Massachusetts Department of Correction

represented by John Michael Stephan (See above for address) TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan F. Bertram (See above for address) ATTORNEY TO BE NOTICED

Kenneth Y. Lee (See above for address) TERMINATED: 08/19/2016 ATTORNEY TO BE NOTICED

Date Filed 06/30/2014 06/30/2014 06/30/2014
06/30/2014 07/01/2014 07/01/2014 07/01/2014
07/01/2014

# Docket Text
1 COMPLAINT against Jane Doe Filing fee: $ 400, receipt number 0101−5081041 (Fee Status: Filing Fee paid), filed by Jane Doe. (Attachments: # 1 Civil Cover Sheet, # 2 Category Form)(Lee, William) (Entered: 06/30/2014)
2 MOTION to Certify Class (Plaintiff's Motion for Class Certification) by Jane Doe.(Lee, William) (Entered: 06/30/2014)
3 MEMORANDUM in Support re 2 MOTION to Certify Class (Plaintiff's Motion for Class Certification) filed by Jane Doe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Lee, William) (Entered: 06/30/2014)
4 MOTION to Seal Exhibit A of Plaintiff's Memorandum of Law in Support of Motion for Class Certification, by Jane Doe. (Attachments: # 1 Text of Proposed Order)(Lee, William) (Entered: 06/30/2014)
5 MOTION For Leave To Proceed Pseudonymously by Jane Doe. (Attachments: # 1 Text of Proposed Order)(Lee, William) (Entered: 07/01/2014)
6 MEMORANDUM in Support re 5 MOTION For Leave To Proceed Pseudonymously filed by Jane Doe. (Lee, William) (Entered: 07/01/2014)
7 NOTICE of Case Assignment. Magistrate Judge Jennifer C. Boal assigned to case. Plaintiff's counsel, or defendant's counsel if this case was initiated by the filing of a Notice of Removal, are directed to the Notice and Procedures regarding Consent to Proceed before the Magistrate Judge which can be downloaded here. These documents will be mailed to counsel not receiving notice electronically. (Abaid, Kimberly) (Entered: 07/01/2014)
8 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Geraldino−Karasek, Clarilde) (Entered: 07/01/2014)

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 6 of 11

07/01/2014 07/01/2014 07/01/2014
07/02/2014 07/02/2014 07/02/2014 07/02/2014 07/02/2014 07/02/2014 07/03/2014 07/08/2014 07/08/2014 07/08/2014 07/08/2014 07/08/2014 07/08/2014 07/09/2014 07/10/2014 07/11/2014
07/17/2014

9 NOTICE of Appearance by Robert D. Fleischner on behalf of Jane Doe (Fleischner, Robert) (Entered: 07/01/2014)
10 MOTION for Leave to Appear Pro Hac Vice for admission of Samuel Miller Filing fee: $ 100, receipt number 0101−5083320 by Jane Doe. (Attachments: # 1 Certification)(Fleischner, Robert) (Entered: 07/01/2014)
11 Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 10 Motion for Leave to Appear Pro Hac Vice Added Samuel Miller. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (York, Steve) (Entered: 07/01/2014)
12 SUMMONS Returned Executed Massachusetts Department of Correction served on 7/1/2014, answer due 7/22/2014. (Lee, William) (Entered: 07/02/2014)
13 SUMMONS Returned Executed Luis S. Spencer served on 7/1/2014, answer due 7/22/2014. (Lee, William) (Entered: 07/02/2014)
14 NOTICE of Appearance by Lisa J. Pirozzolo on behalf of Jane Doe (Pirozzolo, Lisa) (Entered: 07/02/2014)
15 NOTICE of Appearance by Sean K. Thompson on behalf of Jane Doe (Thompson, Sean) (Entered: 07/02/2014)
16 NOTICE of Appearance by Matthew Segal on behalf of Jane Doe (Segal, Matthew) (Entered: 07/02/2014)
17 NOTICE of Appearance by Jessie J. Rossman on behalf of Jane Doe (Rossman, Jessie) (Entered: 07/02/2014)
18 NOTICE of Appearance by Samuel Miller on behalf of Jane Doe (Miller, Samuel) (Entered: 07/03/2014)
19 NOTICE of Appearance by William D. Saltzman on behalf of Lynn Bissonnette, Massachusetts Department of Correction, Luis S. Spencer (Saltzman, William) (Main Document 19 replaced on 7/8/2014) (York, Steve). (Entered: 07/08/2014)
20 NOTICE of Appearance by Michael H. Cohen on behalf of Lynn Bissonnette, Massachusetts Department of Correction, Luis S. Spencer (Cohen, Michael) (Entered: 07/08/2014)
21 NOTICE of Appearance by Bonita P. Tenneriello on behalf of Jane Doe (Tenneriello, Bonita) (Entered: 07/08/2014)
22 NOTICE of Appearance by James R. Pingeon on behalf of Jane Doe (Pingeon, James) (Entered: 07/08/2014)
23 SUMMONS Returned Executed Deval Patrick served on 7/2/2014, answer due 7/23/2014. (Lee, William) (Entered: 07/08/2014)
24 SUMMONS Returned Executed Lynn Bissonnette served on 7/2/2014, answer due 7/23/2014. (Lee, William) (Entered: 07/08/2014)
25 NOTICE of Appearance by John Michael Stephan on behalf of Deval Patrick (Stephan, John) (Entered: 07/09/2014)
26 Assented to MOTION for Extension of Time to 08/04/ 20 14 to File Answer by Lynn Bissonnette, Massachusetts Department of Correction, Luis S. Spencer.(Saltzman, William) (Entered: 07/10/2014)
27 Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 26 Assented to Motion for Extension of Time to 08/04/ 2014 to File Answer. Lynn Bissonnette answer due 8/4/2014; Massachusetts Department of Correction answer due 8/4/2014; Luis S. Spencer answer due 8/4/2014. (York, Steve) (Entered: 07/11/2014)
28 MOTION for Leave to File Supplement to Complaint by Jane Doe. (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Motion for Leave to Supplement the

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 7 of 11

07/17/2014 07/17/2014 07/18/2014
07/18/2014 07/22/2014 07/22/2014
07/22/2014 07/28/2014
07/30/2014 07/31/2014 08/04/2014 08/11/2014 08/11/2014
08/12/2014
08/12/2014 11/04/2014

Complaint)(Lee, William) (Entered: 07/17/2014)
29 MEMORANDUM in Support re 28 MOTION for Leave to File Supplement to Complaint filed by Jane Doe. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lee, William) (Entered: 07/17/2014)
30 Supplemental MOTION for Leave to Proceed Pseudonymously by Jane Doe. (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Supplemental Motion for Leave to Proceed Pseudonymously)(Lee, William) (Entered: 07/17/2014)
31 Assented to MOTION for Extension of Time to August 11, 2014 to File Response/Reply as to 2 MOTION to Certify Class (Plaintiff's Motion for Class Certification), 1 Complaint by Lynn Bissonnette, Massachusetts Department of Correction, Luis S. Spencer.(Cohen, Michael) (Entered: 07/18/2014)
32 Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 31 Assented to Motion for Extension of Time to August 11, 2014 to File Response/Reply. (York, Steve) (Entered: 07/18/2014)
33 NOTICE of Appearance by John Michael Stephan on behalf of Lynn Bissonnette, Massachusetts Department of Correction, Deval Patrick, Luis S. Spencer (Stephan, John) (Entered: 07/22/2014)
34 Assented to MOTION for Extension of Time to August 11, 2014 to File Answer , Assented to MOTION for Extension of Time to August 11, 2014 to File Response/Reply to Motion for Class Certification ( Responses due by 8/5/2014) by Deval Patrick.(Stephan, John) (Entered: 07/22/2014)
35 STIPULATION and (Proposed) Order by Jane Doe. (Lee, William) (Entered: 07/22/2014)
36 Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 34 Assented to MOTION for Extension of Time to August 11, 2014 to File Answer, Assented to MOTION for Extension of Time to August 11, 2014 to File Response/Reply to Motion for Class Certification. (York, Steve) (Entered: 07/28/2014)
37 MOTION to Withdraw as Attorney by Lynn Bissonnette, Massachusetts Department of Correction, Luis S. Spencer. (Attachments: # 1 Notice of Withdrawal, # 2 Notice of Withdrawal)(Saltzman, William) (Entered: 07/30/2014)
38 Refusal to Consent to Proceed Before a US Magistrate Judge. . (Lee, William) (Entered: 07/31/2014)
39 ELECTRONIC NOTICE of Reassignment. Judge Douglas P. Woodlock added. (Abaid, Kimberly) (Entered: 08/04/2014)
40 ANSWER to 1 Complaint by Lynn Bissonnette, Massachusetts Department of Correction, Deval Patrick, Luis S. Spencer.(Stephan, John) (Entered: 08/11/2014)
41 Assented to MOTION for Extension of Time to August 12, 2014 to File Response/Reply as to 2 MOTION to Certify Class (Plaintiff's Motion for Class Certification) by Lynn Bissonnette, Massachusetts Department of Correction, Deval Patrick, Luis S. Spencer.(Stephan, John) (Entered: 08/11/2014)
42 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 37 Motion to Withdraw Appearances; Attorneys Michael H. Cohen and William D. Saltzman terminated; granting 41 Assented to Motion for Extension of Time Until 8/12/14 to File Response/Reply re 2 MOTION to Certify Class ; granting 4 Motion to Seal Exhibit A to Memorandum in Support of Motion to Certify Class; granting 5 Motion for Leave to Proceed Pseudonymously; granting 30 Supplemental Motion for Leave to Proceed Pseudonymously. (Lovett, Jarrett) (Entered: 08/12/2014)
43 Assented to MOTION to Amend Motion for Class Certification by Jane Doe.(Lee, William) (Entered: 08/12/2014)
44 NOTICE OF SCHEDULING INITIAL SCHEDULING CONFERENCE, ORDER FOR JOINT STATEMENT AND CERTIFICATIONS, AND ORDER FOR ELECTRONIC FILING: Initial Scheduling Conference set for 1/13/2015 03:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered:

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 8 of 11

01/06/2015 01/06/2015 01/06/2015 01/12/2015 01/13/2015
01/14/2015
01/14/2015 01/22/2015
01/22/2015 01/27/2015 01/30/2015 01/30/2015

11/04/2014)
45 NOTICE of Appearance by Dennis N. D'Angelo on behalf of Lynn Bissonnette, Massachusetts Department of Correction, Deval Patrick, Luis S. Spencer (D'Angelo, Dennis) (Entered: 01/06/2015)
46 REPORT of Rule 26(f) Planning Meeting. (Lee, William) (Entered: 01/06/2015)
47 CERTIFICATION pursuant to Local Rule 16.1 (D)(3), by Jane Doe.(Lee, William) (Entered: 01/06/2015)
48 CERTIFICATION pursuant to Local Rule 16.1 (D)(3) of Thomas Dickhaut as authorized representative for the Massachusetts Department of Correction, the Commissioner of the Massachusetts Department of Correction, and the Superintendent of the Massachusetts Correctional Institution at Framingham. (Stephan, John) (Entered: 01/12/2015)
49 ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Initial Scheduling Conference held on 1/13/2015; 2 Plaintiff's Motion to Certify Class− GRANTED; 43 Plaintiff's Assented to Motion to Amend Motion to Certify Class − GRANTED; 28 Plaintiff's Motion for Leave to Supplement the Complaint − GRANTED; proposed scheduled adopted by the Court; Submission of Protective Order by 1/30/15; Deadline to Join Additional Parties and AmendPleadings 5/1/15; Fact Discovery completed by 8/15/15; Service of Expert Witness Report(s) for Those Subject(s) for Which Parties Have Burden of Proof by 9/30/15; Service of Rebuttal Expert Witness Report(s) by 11/6/15; Expert Discovery completed by 12/18/15; Summary Judgment Motions due by 1/15/16; Oppositions to Summary Judgment Motions due by 2/12/16; Replies to Summary Judgment Motions due by 3/4/16. (Court Reporter: Brenda Hancock at 617−439−3214.)(Attorneys present: Lee, Miller, Pingeon, Pirozzolo, Rossman, Segal, Stephan, and Thompson) (Lovett, Jarrett) (Entered: 01/14/2015)
50 ELECTRONIC NOTICE of Hearing. Further Status/Scheduling Conference set for 5/19/2016 02:00 PM in Courtroom 1 before Judge Douglas P. Woodlock. By 5/12/2016, the parties shall file a JOINT STATUS REPORT indicating the current status of the case, including discovery proceedings, settlement discussions, pending or contemplated motions, proposed dates for pretrial conferences and for trial, and any other matters which should be addressed at the further conference. (Lovett, Jarrett) (Entered: 01/14/2015)
51 Set/Reset Deadlines: Joint Status Report due by 5/12/2016. (Lovett, Jarrett) (Entered: 01/14/2015)
52 Transcript of Scheduling Conference held on January 13, 2015, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at 617−439−3214 Redaction Request due 2/12/2015. Redacted Transcript Deadline set for 2/23/2015. Release of Transcript Restriction set for 4/22/2015. (Scalfani, Deborah) (Entered: 01/22/2015)
53 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/22/2015)
54 AMENDED COMPLAINT against All Defendants, filed by Jane Doe.(Lee, William) (Entered: 01/27/2015)
55 STIPULATION as to Date for Submission of Protective Order by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction. (Stephan, John) (Entered: 01/30/2015)
56 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered approving 55 Stipulation by the parties to file protective order by 2/6/15.(Lovett, Jarrett) (Entered: 01/30/2015)

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 9 of 11

02/06/2015 02/11/2015
02/13/2015 02/13/2015 02/13/2015 02/17/2015 02/27/2015 02/27/2015 03/03/2015 03/13/2015 03/17/2015 03/20/2015 03/24/2015 03/24/2015 04/03/2015 04/24/2015 05/06/2015 05/11/2015 05/12/2015 06/05/2015

57 STIPULATION as to Date for Submission of Protective Order by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction. (Stephan, John) (Entered: 02/06/2015)
58 Assented to MOTION for Extension of Time to February 13, 2015 to File Answer re 54 Amended Complaint by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction.(Stephan, John) (Entered: 02/11/2015)
59 ANSWER to 54 Amended Complaint by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction.(Stephan, John) (Entered: 02/13/2015)
60 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 58 Motion for Extension of Time Until 2/13/15 to Answer Amended Complaint. (Lovett, Jarrett) (Entered: 02/13/2015)
61 STIPULATION as to Date for Submission of Protective Order by Jane Doe. (Lee, William) (Entered: 02/13/2015)
62 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered approving 61 Stipulation to File Protective Order by 2/27/15. (Lovett, Jarrett) (Entered: 02/17/2015)
63 STIPULATION as to Date for Submission of Protective Order by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction. (Stephan, John) (Entered: 02/27/2015)
64 STIPULATION as to Date for Submission of Protective Order [CORRECTED] by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction. (Stephan, John) (Entered: 02/27/2015)
65 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered approving 64 Stipulation to File Protective Order by 3/13/15. (Lovett, Jarrett) (Entered: 03/03/2015)
66 STIPULATION as to Date for Submission of Protective Order by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction. (Stephan, John) (Entered: 03/13/2015)
67 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered approving 66 Stipulation to File Protective Order by 3/20/15.(Lovett, Jarrett) (Entered: 03/17/2015)
68 Joint MOTION for Protective Order (Joint Motion for Entry of Agreed Protective Order) by Jane Does 1−8. (Attachments: # 1 Exhibit A)(Lee, William) (Entered: 03/20/2015)
69 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 68 Joint Motion for entry of Agreed Protective Order. (Lovett, Jarrett) (Entered: 03/24/2015)
70 Judge Douglas P. Woodlock: ORDER entered. AGREED PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS.(Lovett, Jarrett) (Entered: 03/24/2015)
71 NOTICE of Withdrawal of Appearance by John Michael Stephan (Stephan, John) (Entered: 04/03/2015)
72 NOTICE of Appearance by Bryan F. Bertram on behalf of Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction (Bertram, Bryan) (Entered: 04/24/2015)
73 Joint MOTION to Stay and Modify Schedule by Jane Does 1−8. (Attachments: # 1 Exhibit A − Proposed Order)(Lee, William). (Entered: 05/06/2015)
74 NOTICE of Withdrawal of Appearance by Samuel R. Miller (Miller, Samuel) (Entered: 05/11/2015)
75 NOTICE of Appearance by Sandra J. Staub on behalf of Jane Does 1−8 (Staub, Sandra) (Entered: 05/12/2015)
76 NOTICE of Withdrawal of Appearance by Dennis N. D'Angelo (D'Angelo, Dennis) (Entered: 06/05/2015)

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 10 of 11

07/30/2015
07/31/2015 08/27/2015 09/01/2015
02/19/2016 04/15/2016 04/15/2016 04/19/2016 04/26/2016 05/02/2016 05/02/2016
05/16/2016 05/16/2016

77 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting in part 73 Joint Motion for Stay and Modification of Schedule; matter stayed until 8/3/15; fact discovery to be completed by 11/13/15; service of expert witness report(s) for those subject(s) for which parties have the burden of proof by 12/18/15; service of rebuttal expert witness report by 2/4/16; expert discovery completed by 3/17/16; motions for summary judgment due by 4/14/16; oppositions due by 5/12/16; replies due by 6/2/16; Joint Status Report due by 6/14/16; Further Status/Scheduling Conference continued to 6/16/16 02:00 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 07/30/2015)
78 NOTICE of Appearance by Kenneth Y. Lee on behalf of Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction (Lee, Kenneth) (Entered: 07/31/2015)
79 Joint MOTION to Stay and Modification of Schedule, and Joint Progress Report by Jane Does 1−8.(Lee, William). (Entered: 08/27/2015)
80 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered noting 79 Joint Progess Report, and granting in pary said Joint Motion for Stay and Modification of Schedule; matter stayed until 10/6/15; fact discovery to be completed by 1/15/16; opening expert reports by 2/19/16; rebuttal expert reports by 4/22/16; expert discovery completed by 5/20/16; motions for summary judgment due by 6/24/16; oppositions due by 7/8/16; replies due by 7/22/16; Joint Status Report due by 7/26/16; Further Status/Scheduling Conference continued to 7/28/16 at 02:00 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 09/01/2015)
81 NOTICE of Withdrawal of Appearance by Sean K. Thompson (Thompson, Sean) (Entered: 02/19/2016)
82 MOTION for Status Conference (Plaintiffs' Request for Status Conference) by Jane Does 1−8.(Lee, William) (Entered: 04/15/2016)
83 EXHIBIT re 82 MOTION for Status Conference (Plaintiffs' Request for Status Conference) (Exhibit A to Plaintiffs' Request for Status Conference) by Jane Does 1−8. (Lee, William) (Entered: 04/15/2016)
84 RESPONSE to Motion re 82 MOTION for Status Conference (Plaintiffs' Request for Status Conference) filed by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction. (Bertram, Bryan) (Entered: 04/19/2016)
85 Judge Douglas P. Woodlock: ELECTRONIC ORDER on Plaintiffs' Request for Status Conference 82 : Based upon the representations made in the underlying submissions, the Defendants shall file a motion to dismiss no later than May 2, 2016; Plaintiffs to file their opposition no later than May 16, 2016. (Beatty, Barbara) (Entered: 04/26/2016)
86 MOTION to Dismiss as Moot under Fed. R. Civ. P. 12(b)(1) by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction, Deval Patrick, Luis S. Spencer.(Bertram, Bryan) (Entered: 05/02/2016)
87 MEMORANDUM in Support re 86 MOTION to Dismiss as Moot under Fed. R. Civ. P. 12(b)(1) filed by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction, Deval Patrick, Luis S. Spencer. (Attachments: # 1 Affidavit Affidavit of Donna Benedict, # 2 Affidavit Affidavit of Leslie Darcy, # 3 Affidavit Affidavit of Bryan Bertram, # 4 Exhibit Ex. A to Affidavit of Bryan Bertram, # 5 Exhibit Ex. B to Affidavit of Bryan Bertram, # 6 Exhibit Ex. C to Affidavit of Bryan Bertram, # 7 Exhibit Ex. D to Affidavit of Bryan Bertram, # 8 Exhibit Ex. E to Affidavit of Bryan Bertram)(Bertram, Bryan) (Entered: 05/02/2016)
88 MEMORANDUM in Opposition re 86 MOTION to Dismiss as Moot under Fed. R. Civ. P. 12(b)(1) filed by Jane Does 1−8. (Lee, William) (Main Document 88 replaced on 5/17/2016) (Gioia, AnaMaria). (Entered: 05/16/2016)
89 AFFIDAVIT in Support re 88 Memorandum in Opposition to Motion . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Lee, William) (Entered: 05/16/2016)

Case: 1:14-cv-12813 As of: 05/20/2018 08:38 PM EDT 11 of 11

06/01/2016 06/10/2016
06/16/2016 06/20/2016 06/24/2016 07/08/2016 07/15/2016 07/15/2016 08/19/2016 03/31/2018
03/31/2018

90 NOTICE OF HEARING: Hearing on Motion 86 to Dismiss as Moot under Fed. R. Civ. P. 12(b)(1) set for 6/10/2016 at 2:30 pm in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 06/01/2016)
91 Clerk's Notes for Motion Hearing: Argument heard on motion to dismiss 86 . Motion DENIED. Court may not be in the right position to determine mootness in this case, as the relief requested is still an injunction. Declaratory judgment may be the better remedy, but that would require amendment of the current complaint. Plaintiffs may amend their complaint by next Friday, 6/17. If amended complaint is filed, all counsel will confer to create a briefing schedule for a new round of briefing for a motion to dismiss the amended complaint. (Court Reporter: Brenda Hancock at brhancock@msn.com.)(Attorneys present: Segal, Pingeon, Lee, Bertram) (Beatty, Barbara) Modified date hearing held on 6/27/2016 (Beatty, Barbara). (Entered: 06/13/2016)
92 Assented to MOTION for Extension of Time to June 24, 2016 to Amend Complaint by Jane Does 1−8.(Lee, William) (Entered: 06/16/2016)
93 Judge Douglas P. Woodlock: ORDER granting 92 Plaintiffs' Assented to Motion for Extension to Time to File an Amended Complaint until 6/24/2016. (Beatty, Barbara) (Entered: 06/20/2016)
94 RESPONSE TO COURT ORDER by Jane Does 1−8 re 91 Order on Motion to Dismiss,,, Motion Hearing,, . (Lee, William) (Entered: 06/24/2016)
95 RESPONSE TO COURT ORDER by Charles D. Baker, Lynn Bissonnette, Carol Higgins O'Brien, Massachusetts Department of Correction, Deval Patrick, Luis S. Spencer re 94 Response to Court Order . (Lee, Kenneth) (Entered: 07/08/2016)
96 NOTICE CANCELING STATUS CONFERENCE set for 7/28/2016. (Beatty, Barbara) (Entered: 07/15/2016)
97 Response by Jane Does 1−8 to 95 Response to Court Order . (Lee, William) (Entered: 07/15/2016)
98 NOTICE of Withdrawal of Appearance by Kenneth Y. Lee (Lee, Kenneth) (Entered: 08/19/2016)
99 Judge Douglas P. Woodlock: ELECTRONIC ORDER DISMISSING CASE entered. The landscape of this certified class action was transformed by the amendment of Mass. Gen Laws ch. 123, sec. 35, which the plaintiffs had challenged to the degree it provided a basis for civil commitments to MCI−Framingham. The defendants take the position that in the wake of the amendment all such commitments have ceased and that there are no plans to make such commitments in the future. The parties, however, have continued to circle each other suspiciously. The defendants seek dismissal of the case based upon their statement of present intention; the plaintiffs seek a judgment interpreting sec. 35 as amended to prevent civil commitments to MCI−Framingham as a matter of law irrespective of the stated present intentions of the relevant state actors. There have been no submissions in almost two years to suggest that there is any foreseeable circumstance in which civil commitments to MCI−Framingham may be undertaken. This case lacks the type of foreseeable concrete injury that would support any relief the plaintiffs might successfully seek. It is plainly moot. Nevertheless, given the defendants' studied refusal to concede that sec. 35 categorically bars any civil commitments to MCI−Framingham, prudence − not to mention this court's duty to protect the inchoate interests of class members − requires making explicit that this dismissal is without prejudice to any future litigation challenging civil commitments to MCI−Framingham should they ever resume. Accordingly, the Clerk is directed to enter a judgment dismissing this case without prejudice. (Woodlock, Douglas) (Entered: 03/31/2018)
100 Judge Douglas P. Woodlock: JUDGMENT OF DISMISSAL...In accordance with this Courts Electronic Order issued on March 31, 2018 (ECF #99), it is hereby ORDERED the above−entitled action be, and hereby is, DISMISSED without prejudice. (Beatty, Barbara) (Entered: 04/02/2018)