Page v. McDowell et al

Filing 63

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's Motion For Summary Judgment (Docket No. 34) is denied. (Denying 34 Motion for Summary Judgment. Signed by Magistrate Judge Frederick R. Buckles on 3/22/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
IVAN T. PAGE,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
JULIE MOTLEY,
Defendant.

Case No. 4:11CV1951 FRB

MEMORANDUM AND ORDER
Presently before the Court is plaintiff Ivan T. Page’s
Motion For Summary Judgment.

(Docket No. 34).

All matters are

pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c).
I.

Background
Plaintiff Ivan T. Page (“plaintiff”) brought the instant

action

pursuant

to

42

U.S.C.

§

1983

alleging

that

his

constitutionally protected rights were violated by various actions
of defendant Julie Motley (also “defendant”).1
Plaintiff is a convicted sex offender whose participation
in the Missouri Sexual Offenders Program (“MoSOP”)2 was terminated

1

Plaintiff’s original and Amended Complaint alleged claims
against defendants other than Julie Motley. However, after
conducting initial review, the Court dismissed plaintiff’s claims
against all defendants with the exception of Ms. Motley.
2

Missouri law requires convicted sex offenders to complete
MoSOP, a rehabilitative treatment program, before they may be
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following a Treatment Team meeting3 held on September 22, 2009 and
attended by defendant.

Defendant is the Director of MoSOP.

She is

employed by a company that contracts with the State of Missouri to
provide health care services.

(Affidavit Of Julie Motley, Docket

No. 40, Attachment 1, page 1).

In his Amended Complaint and in the

instant Motion, plaintiff argues that defendant violated his due
process and equal protection rights inasmuch as she took various
actions that resulted in his wrongful termination from MoSOP and
subsequent ineligibility for parole.

In the instant Motion For

Summary Judgment, plaintiff also appears to raise allegations of
retaliation, and allegations sounding in the ex post facto clause
of the Constitution and the Americans With Disabilities Act, 42
U.S.C. §§ 12131 et seq. (also “ADA”).

Defendant has responded to

the instant motion, and has submitted her affidavit setting forth
the events leading up to plaintiff’s termination from MoSOP, and
exhibits detailing communications between plaintiff’s therapists
and the Treatment Team regarding plaintiff’s behavior and lack of
progress while in MoSOP.

considered for conditional release. R.S.Mo. § 589.040.2; see
also State ex rel. Nixon v. Pennoyer, 39 S.W.3d 521, 522 & n. 2
(Mo. Ct. App. 2001).
3

The Treatment Team is “normally comprised of a caseworker
and a Missouri sex offender program therapist.” (Missouri
Department of Corrections Department Manual, Docket No. 40,
Attachment 5, page 2). A Treatment Team meeting is a clinical
review of an inmate’s progress in MoSOP. (Affidavit of Julie
Motley, Docket No. 40, Attachment 1, page 2).
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II.

Discussion
Plaintiff brings this action pursuant to 42 U.S.C. §

1983.

“Liability under § 1983 requires a causal link to, and

direct responsibility for, the deprivation of rights.” Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990).
Rule 56(c) of the Federal Rules of Civil Procedure
provides that summary judgment shall be entered “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”

In ruling on a motion for

summary judgment, the court is required to view the facts in the
light most favorable to the non-moving party and must give that
party the benefit of all reasonable inferences to be drawn from the
underlying facts.

AgriStor Leasing v. Farrow, 826 F.2d 732, 734

(8th Cir. 1987).

The moving party bears the burden of showing both

the

a

absence

of

genuine

issue

of

material

entitlement to judgment as a matter of law.

fact,

and

his

Fed. R. Civ. P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986).

Once the moving party has met its burden, the non-moving

party may not rest on the allegations in her pleadings but must set
forth specific facts, by affidavit or other evidence, showing that
a genuine issue of material fact exists.

Fed. R. Civ. P. 56(e).

Rule 56(c) “mandates the entry of summary judgment, after adequate
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time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corporation v. Catrett, 477
U.S. 317, 322 (1986).
A.

Due Process

Plaintiff

argues

that

various

actions

of

defendant

violated his right to procedural due process, inasmuch as defendant
arbitrarily terminated him from MoSOP, failed to give him notice of
a treatment team meeting, wrongfully participated in both the
Treatment Team meeting and the decision to terminate him from
MoSOP, and terminated him from MoSOP on the basis of a single
incident.

Plaintiff also complains that he was denied substantive

due process inasmuch as defendant did not give him a second chance
to complete MoSOP. However, none of plaintiff’s allegations of due
process violations entitle him to judgment as a matter of law.
Due process requirements apply only to the deprivation of
interests

encompassed

property or liberty.

by

the

14th

Amendment’s

protection

of

Board of Regents Of State Colleges v. Roth,

408 U.S. 564, 569 (1972).

Neither such interest exists here.

Plaintiff does not possess a liberty interest in the possibility of
parole or in his conditional release date because “there is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.”
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7
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(1979); see also Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005)
(“[A]n inmate does not have a constitutionally-protected liberty
interest in the possibility of parole ...”).

Nor does plaintiff

have a liberty interest in participation in MoSOP.

“A state

created liberty interest arises in situation in which [sic] the
state

has

placed

substantive

official discretion.”

limitations

on

the

exercise

of

Jones v. Moore, 996 F.2d 943, 945 (8th

Cir. 1993) (internal citations omitted).

While Missouri law

requires certain inmates to complete MoSOP before being eligible
for conditional release, the law does not place the requisite
substantive limitations on the exercise of official discretion.
Id.

Missouri law therefore “does not grant inmates a liberty

interest in participating in MoSOP at any particular time relevant
to their presumptive parole dates.”

Id.; see also Patterson v.

Webster, 760 F.Supp. 150, 153 (E.D. Mo. 1991) (“Because plaintiffs
have no liberty interest in parole, no procedural due process
protections

attach

to

their

participation

in

MOSOP”).

The

undersigned therefore determines that plaintiff has failed to
demonstrate entitlement to judgment as a matter of law.
Even if plaintiff could demonstrate a protected liberty
interest, his due process claims would fail.

While plaintiff

claims, citing no evidentiary support, that he was referred for a
disciplinary classification hearing, as defendant avers in her
affidavit, plaintiff was actually referred for a Treatment Team
meeting.

Plaintiff contends that defendant violated his due
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process

rights

participating

by

in

attending

the

the

decision

Treatment

to

Team

terminate

him

meeting
from

and

MoSOP.

Plaintiff claims that defendant exerted a “command influence” at
the meeting and otherwise deprived him of a fair hearing, and
wrongfully and arbitrarily terminated him based upon a single
incident.

Plaintiff

allegations,

and

they

submits
are

no

evidence

conclusory

at

to

support

best.

In

these

response,

defendant submitted her affidavit in which she averred that there
existed no policy precluding her attendance at the Treatment Team
meeting.

As defendant asserts, her position as Director of MoSOP

required her to review all terminations from MoSOP, and there is no
evidence to suggest that she could not fulfill this obligation by
attending

plaintiff’s

treatment

team

meeting.

Furthermore,

defendant avers that the ultimate decision regarding termination
was made by the team as a whole on the basis of plaintiff’s
persistent failure to progress despite many weeks of participation
in

MoSOP.

Plaintiff’s

allegations

that

he

was

arbitrarily

terminated based upon a single incident are also belied by the
progress notes he himself submitted with the instant motion, which
document his history of a negative attitude and poor progress while
in MoSOP.

As defendant’s affidavit demonstrates, she and the

members of the Treatment Team considered documentation of many
instances of plaintiff’s negative attitude, poor behavior and
failure to progress, and concluded in their clinical judgment that
plaintiff should be terminated from MoSOP.
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The determination of

whether plaintiff was making adequate progress in MoSOP was not
made independently by defendant, it was made by a team comprised of
qualified health care professionals.
between

plaintiff

and

his

mental

A difference of opinion
health

care

providers

insufficient to state a claim under 42 U.S.C. § 1983.
Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991).

is

Warren v.

Plaintiff also

contends, without evidentiary support, that he was not given notice
of the Treatment Team meeting within 24 hours as required by
Missouri Department of Corrections policy.

However, as defendant

avers in her affidavit, plaintiff was given the required notice
September 18, 2009, four days in advance of the meeting.
Plaintiff also argues that defendant wrongfully denied
him a second chance in MoSOP.

As stated above, plaintiff did not

have a liberty interest in participation in MoSOP at any particular
time relevant to his conditional release date. Jones v. Moore, 996
F.2d at 945.

Even if plaintiff did have such an interest, his

claim would fail.

To prevail, he would need to demonstrate that

defendant’s conduct was conscience-shocking and that she violated
one or more fundamental rights.
Cir. 2002).

Moran v. Clark, 296 F.3d 638 (8th

As defendant avers in her affidavit, she was not in

charge of placing offenders into MoSOP for a second opportunity to
successfully complete the program.

Even if she were, Missouri

Department of Corrections policy does not mandate that offenders be
given a second chance to complete MoSOP; it provides only that
offenders may be given a second opportunity as time and resources
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allow.
B.

Equal Protection
In the instant Motion, plaintiff claims that defendant

took action that deprived him of equal protection.

The equal

protection clause requires that a state’s laws treat similarly
those similarly situated.

U.S. Constitution, Amendment XIV.

In

support of his claim, plaintiff states, without any evidentiary
support, that other individuals of a race different from plaintiff
were also referred to the Treatment Team and were not terminated
from MoSOP.

Plaintiff states that those individuals had not

demonstrated progress in MoSOP superior to plaintiff’s, and race
was therefore the reason he was terminated and they were not.

In

response, defendant avers in her affidavit that the decision of
whether to terminate an individual from participation in MoSOP is
based upon the individual’s progress in MoSOP, not the individual’s
race.

Defendant also avers that the progress of individuals

referred to the Treatment Team is evaluated by qualified mental
health professionals, and that decisions are made based upon what
is best for the offender, the other participants in therapy, and
the citizens of the state of Missouri.

Plaintiff’s assertion that

his progress was commiserate with that of the other individuals has
no evidentiary support and is merely conclusory.

In addition, the

fact that plaintiff disagreed with the mental health care providers
regarding whether he or others should have been terminated from
MoSOP does not state a claim under 42 U.S.C. § 1983.
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Warren, 950

F.2d at 1373.
C.

Ex Post Facto Clause
Also in the instant Motion, plaintiff claims that his

mandated participation in MoSOP and denial of conditional release
violates the Constitution’s ex post facto clause.

“An ex post

facto law is one which reaches back in time to punish acts which
occurred before enactment of the law.” Peeler v. Heckler, 781 F.2d
649, 651 (8th Cir. 1986).

“A penal statute may also be an ex post

facto enactment if it adds a new punishment to the one that was in
effect when the crime was committed.”

Id.

Plaintiff argues that he should have been granted his
conditional release date of August 23, 2011, because R.S.Mo. §
589.040.2 was not effective until November 14, 2011.

However, as

defendant correctly notes in response, at all times relevant to
plaintiff’s

case,

R.S.Mo.

§

589.040.2

required

successful

completion of MoSOP before an inmate may be considered for early
release.

Furthermore, MOSOP is a rehabilitative program.

not penal in nature.

It is

It adds no further sentence to that which has

already been imposed upon the sex offender.

Plaintiff appears to

confuse his potential release date with the date of the completion
of his imposed sentence. Plaintiff’s failure to complete MoSOP did
not extend his actual sentence; it only affected his conditional
release

date.

The

ex

post

facto

implicated.

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clause

is

therefore

not

D.

Retaliation
In the instant Motion, plaintiff also claims that the

Warden

of

Farmington

Correctional

Center

and/or

defendant

retaliated against him by having him transferred to Bowling Green
Correctional Center.

The Warden of the Farmington Correctional

Center is not a defendant in this case.

In addition, as defendant

avers in her affidavit, she is not an employee of the State of
Missouri or the Department of Corrections; she is employed by a
company that has a contract with the state to provide mental health
services.

Defendant does not participate in the decisions made by

the Missouri Department of Corrections to transfer any inmate,
including plaintiff, from one institution to another.
E.

ADA
In the instant Motion, while plaintiff does not raise a

specific claim under the ADA, he does note that he suffers from
migraine headaches, and he submitted as an exhibit to the instant
motion

the

plaintiff

ADA’s
does

definition

not

of
or

suggest

a

disabled

offer

person.

evidence

that

However,
migraine

headaches played any part in his failure to progress in MoSOP or
his

subsequent

termination

therefrom.

In

addition,

even

if

plaintiff’s Amended Complaint or the instant motion could be read
to so suggest, defendant is not a public entity to whom the ADA
applies.

See 42 U.S.C. 12131.
For all of the foregoing reasons, it cannot be said that

plaintiff has established his right to judgment with such clarity
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as to leave room for no controversy, and that defendant is not
entitled to prevail under any discernible circumstances.
Co., 612 F.2d at 1077.

Vette

Plaintiff’s Motion For Summary Judgment

should therefore be denied.
Therefore,
IT IS HEREBY ORDERED that plaintiff’s Motion For Summary
Judgment (Docket No. 34) is denied.

_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 22nd day of March, 2013.

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