Page v. McDowell et al

Filing 64

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Julie Motley's Motion For Summary Judgment (Docket No. 41) is granted. IT IS FURTHER ORDERED that judgment is entered in favor of defendant Julie Motley and against plaintiff Ivan T. Page. An appropriate Judgment shall accompany this Memorandum and Order. Granting 41 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 Defendant Julie Motley’s
Motion For Summary Judgment (Docket No. 41).

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
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
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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, plaintiff
complains

that

protection

defendant

rights

violated

inasmuch

as

she

his
took

due

process

various

and

actions

equal
that

resulted in his wrongful termination from MoSOP and subsequent
ineligibility for parole.
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

(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. 42,
Attachment 5, page 2).
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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

her

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 his 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
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).
In her Motion For Summary Judgment, Ms. Motley contends
that there are no material questions of fact and that she is
entitled to judgment as a matter of law on plaintiff’s claims.

In

her Statement of Uncontroverted Material Facts, defendant states as
follows.

While participating in MoSOP, plaintiff was referred by

his therapist for a Treatment Team meeting.

A Treatment Team

meeting is not a disciplinary hearing (as plaintiff suggests) but
is instead a clinical review of the prisoner’s progress in MoSOP.
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On September 18, 2009, plaintiff was given notice of the Treatment
Team meeting, which was subsequently held on September 22, 2009.
The

Treatment

Team

noted

plaintiff’s

persistent

failure

to

demonstrate progress in MoSOP, as demonstrated by the following
evidence: (1) six weekly progress reports between May 22, 2009 and
August 21, 2009 showed his progress to be fair or poor; (2) on May
22,

2009,

his

participation

level

was

noted

to

be

mixed

appropriate/inappropriate; (3) On May 29, 2009, it was noted that
plaintiff’s progress was only fair; (4) On June 5, 2009, it was
noted that plaintiff did not bring any personal issues to the group
for discussion; (5) on July 10, 2009, it was noted that plaintiff
avoided

discussions

and

questioned

the

process

and

that

his

participation was mixed appropriate/inappropriate; (6) On July 17,
2009,

plaintiff

was

not

endorsed

for

full

membership

by

the

treatment group; (7) on August 7, 2009, plaintiff’s participation
was noted to be active and inappropriate, he was noted to be very
resistant to feedback, and he was accused of attempting to rally
some African-American men to organize for protection; (8) on August
14, 2009, plaintiff’s participation was active and inappropriate,
his progress was poor, he was unanimously rejected by the treatment
group for full membership, and he failed to take responsibility for
his actions; (9) on July 10, 2009, plaintiff’s participation was
mixed appropriate/inappropriate; (10) clinical progress notes from
August 24 to September 26, 2009 showed a pattern of plaintiff being
sarcastic to others, showing a lack of respect, and of failing to
be receptive to feedback; (11) while plaintiff passed the class
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“Criminal Thinking and Substance Abuse,” his concept understanding,
concept application, and homework were all poor; (12) an August 27,
2009 Quarterly Treatment Plan Report noted that the goals of
identifying internal and external triggers of sex offense, and
determination of degree and level of sexual interest in/attraction
to children were only partially met.
plaintiff’s
Team

as

a

After a thorough review of

progress, or lack thereof, in MoSOP, the Treatment
whole

decided

to

terminate

plaintiff

from

MoSOP.

(Defendant Julie Motley’s Statement Of Uncontroverted Material
Facts In Support Of Defendant’s Motion For Summary Judgment, Docket
No.

42,

Attachment

13

(hereafter

“Defendant’s

Statement

of

Uncontroverted Material Facts”) at pages 2-4).
A.

Due Process

In his Amended Complaint, plaintiff contends that various
actions

of

substantive

defendant
due

violated

process,

his

inasmuch

right
as

to

procedural

defendant

and

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, wrongfully
terminated him from MoSOP on the basis of a single incident, and
failed to give him a second chance to complete MoSOP.

Defendant

has adequately established her right to judgment as a matter of law
on these claims.
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,
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408 U.S. 564, 569 (1972). Neither 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 (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

discretion.”

limitations

on

the

exercise

of

official

Jones v. Moore, 996 F.2d 943, 945 (8th Cir. 1993)

(internal citations omitted).

While Missouri law requires certain

inmates to complete MoSOP before becoming eligible for conditional
release,

the

law

does

not

place

the

requisite

limitations on the exercise of discretion.
therefore

“does

not

grant

inmates

a

Id.

liberty

substantive
Missouri law
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”).

Therefore, as a matter

of law, defendant is entitled to summary judgment on plaintiff’s
claims of procedural and substantive due process violations.

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Even if plaintiff did have a protected liberty interest,
his claims would fail. In support of the instant motion, defendant
submitted,

inter

alia,

her

affidavit

uncontroverted material facts.

and

her

statement

of

While defendant did submit a

Memorandum of Law purportedly in response to the instant Motion,
plaintiff did not set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists.
See Fed. R. Civ. P. 56(e).
subjected

to

a

While plaintiff claims that he was

disciplinary

classification

hearing,

the

uncontroverted material facts show that plaintiff was actually
referred for a Treatment Team meeting. While plaintiff claims that
he

was

not

given

24

hour

notice

of

the

proceeding,

the

uncontroverted material facts show that plaintiff was given notice
on September 18, 2009, four days in advance of the meeting.

While

defendant claims that defendant wrongfully participated in the
Treatment

Team

terminated

him

meeting,
from

exerted

MoSOP

based

undue
upon

influence,
a

single

arbitrarily

incident,

and

otherwise deprived him of a fair hearing, the uncontroverted
material facts show otherwise.

The uncontroverted material facts

show that there was no policy precluding defendant’s attendance at
the Treatment Team meeting.

As Director of MoSOP, defendant was

required to review MoSOP terminations, and there is no evidence to
suggest

that

defendant

could

not

fulfill

attending plaintiff’s Treatment Team meeting.
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this

obligation

by

The uncontroverted

material facts also show that the decision to terminate plaintiff
from MoSOP was made not by defendant alone, but by the Treatment
Team as a whole.

The uncontroverted material facts show that the

Treatment Team’s decision was, as set forth above, based upon
numerous

documented

instances

of

plaintiff’s

failure

to

show

progress and his demonstration of poor attitude during the weeks he
participated in MoSOP, not upon a single incident as plaintiff
would have the Court believe.

A difference of opinion between

plaintiff and his mental health care providers is insufficient to
state a claim under 42 U.S.C. § 1983.

Warren v. Fanning, 950 F.2d

1370, 1373 (8th Cir. 1991).
Plaintiff also argues that defendant wrongfully denied
him a second chance to complete MoSOP.

As set forth 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.

As defendant avers in her

affidavit, placements in MoSOP for a second chance are made by a
MoSOP

case

worker,

not

defendant,

and

defendant

is

not

even

involved in that process. 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 allow.
plaintiff’s

claims

of

due

process

violations,

defendant

On
has

established her right to judgment as a matter of law, and plaintiff
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has failed to come forth with an affidavit or other admissible and
probative evidence demonstrating that there remains a genuine issue
for trial.

See Anderson, 477 U.S. at 256 (once the moving party

has met its burden, the nonmoving party may not rest on the
allegations in its pleadings, but must set forth, by affidavit or
other admissible and probative evidence, specific facts showing the
existence of a genuine issue of material fact).
B.

Equal Protection
Plaintiff next contends 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

equal protection 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 that
race was therefore the reason he was terminated and they were not.
In the instant Motion, defendant avers in her affidavit and in her
Statement Of Uncontroverted Material Facts that the decision of
whether to terminate an individual from participation in MoSOP is
based only upon the individual’s behavior and 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
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based

upon

what

participating
Missouri.

is

in

best

for

therapy,

the

and

the

offender,

the

citizens

of

other
the

people

state

of

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 his own
progress or the progress of others in therapy and/or whether he or
others should have been terminated from MoSOP does not state a
claim under 42 U.S.C. § 1983.

Warren, 950 F.2d at 1373.

Having viewed all of the evidence in plaintiff’s favor
and

having

inferences,

given
the

plaintiff

the

undersigned

benefit

concludes

of

all

that

reasonable

defendant

has

established entitlement to judgment as a matter of law, and that
plaintiff has failed to come forth with an affidavit or other
admissible and probative evidence demonstrating that there remains
a genuine issue for trial.

See Anderson, 477 U.S. at 256 (once the

moving party has met its burden, the nonmoving party may not rest
on the allegations in its pleadings, but must set forth, by
affidavit or other admissible and probative evidence, specific
facts showing the existence of a genuine issue of material fact).
Defendant’s

motion

for

summary

judgment

granted.

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should

therefore

be

Therefore,
IT IS HEREBY ORDERED that Defendant Julie Motley’s Motion
For Summary Judgment (Docket No. 41) is granted.
IT IS FURTHER ORDERED that judgment is entered in favor
of defendant Julie Motley and against plaintiff Ivan T. Page.
An appropriate Judgment shall accompany this Memorandum
and Order.

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

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