Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-2538

MICHAEL COTE, ET AL.,

Plaintiffs, Appellants,

v.

ROBERT MURPHY AND MICHAEL T. MALONEY,

Defendants, Appellees.

ON APPEAL FROM A JUDGMENT OF

THE UNITED STATES DISTRICT COURT

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lynch and Lipez, Circuit Judges.

Michael Cote, et. al., pro se, on memorandum.

Brian P. Mansfield, Counsel, Department of Correction, and

Nancy Ankers White, Special Assistant Attorney General, on brief

for Defendants, Appellees.

October 21, 2005
-2-

Per Curiam. Plaintiffs/appellants are four individuals

who have been adjudicated to be “sexually dangerous persons” and

civilly committed to the Massachusetts Treatment Center under Mass.

G.L. ch. 123A, §§ 1-16. In this pro se action brought pursuant to

42 U.S.C. § 1983, they challenge the Center’s policy of “doublebunking” its residents, claiming that such a practice violates the

Fourteenth Amendment and the Center’s management plan. Upon motion

from defendants, the district court dismissed the amended

complaint, inter alia, for failure to state a claim. Plaintiffs

have timely appealed but have chosen not to file a brief,

preferring instead to rely on their submissions below. We affirm

essentially for the reasons enumerated by the district court,

adding only the following.

It is undisputed that due process provides the governing

standards in this context. See, e.g., Seling v. Young, 531 U.S.

250, 265 (2001). The “dispositive inquiry” is whether the

challenged restrictions constitute “punishment.” Block v.

Rutherford, 468 U.S. 576, 583 (1984). To pass muster, “the

conditions and duration of confinement [must]. . .bear some

reasonable relation to the purpose[s] for which persons are

committed,” Seling, 531 U.S. at 265–-which here include not only

treatment and rehabilitation but public safety, see, e.g., Kansas

v. Hendricks, 521 U.S. 346, 363 (1997). Among the other
-3-

protections afforded by due process is the right to “reasonable

safety.” Youngberg v. Romeo, 457 U.S. 307, 324 (1982).

Double-bunking is not a per se violation of due process,

see Bell v. Wolfish, 441 U.S. 520, 541-43 (1979), but in rare cases

might amount to an unlawful practice when combined with other

adverse conditions, see, e.g., id. at 542; Inmates of Suffolk

County Jail v. Rufo, 12 F.3d 286, 293-94 (1 Cir. 1993); cf. Nami st

v. Fauver, 82 F.3d 63, 65-68 (3d Cir. 1996) (holding that such a

challenge stated Eighth Amendment claim). Yet this is not such a

case. The district court properly found an absence of “any factual

allegation that demonstrates that double-bunking has [caused] or

will cause these plaintiffs any sort of constitutionally-cognizable

injury.” Based on the amended complaint alone, that conclusion is

inescapably true; plaintiffs there simply asserted that they were

being put “in harm[‘]s way.” And it remains true even if (in

recognition of plaintiffs’ pro se status) one considers the factual

allegations contained in all of their filings below. We explain

briefly.

In charging that double-bunking amounts to punishment,

plaintiffs mainly argue that the practice increases the risk of

sexual assaults and other violence. They maintain that “room

visits” among residents were restricted in 1996 and then prohibited

in 2003 largely for this reason. They also allege that defendants

have failed to evaluate potential roommates for compatibility, as
-4-

required by the Center’s management plan. What is missing,

however, is any suggestion that plaintiffs themselves are in danger

of being harmed. Indeed, they offer brief descriptions of their

own residential arrangements which are entirely devoid of such

concerns. “While a pro se complaint is held to less stringent

standards than one drafted by an attorney. . ., courts need not

conjure up unpleaded facts to support. . .conclusory

[allegations].” Hurney v. Carver, 602 F.2d 993, 995 (1 Cir. 1979) st

(internal quotation marks omitted; brackets in original).

On this record, plaintiffs’ due process claim thus

effectively reduces to a charge that double-bunking of sex

offenders is a per se constitutional violation. That proposition

is without merit. See, e.g., Allison v. Snyder, 332 F.3d 1076,

1079 (7 Cir.) (holding that, in light of Wolfish, “[d]etails such th

as double celling add nothing” to due process claim brought by

civilly-committed sexually dangerous persons in Illinois), cert.

denied, 540 U.S. 985 (2003).

Plaintiffs also object that as pro se litigants they

should have been notified of any pleading deficiencies and given a

chance to amend their complaint accordingly. Yet defendants’

memorandum provided ample notice, asserting that “plaintiffs have

failed to allege that they have suffered any injury as a result of

being double bunked.” And at no time since–-either in opposition

to that memorandum, in response to the district court’s decision,
-5-

or on appeal-–have plaintiffs proffered any new factual allegations

in an attempt to address this shortcoming. We also note that the

complaint was not dismissed sua sponte pursuant to 28 U.S.C. §

1915(e)(2), as plaintiffs suggest, but rather under Fed. R. Civ. P.

12(b)(6).

Affirmed.