668 F.3d 549 (8th Cir. 2012), 10-2029, Strutton v. Meade

Docket Nº:10-2029.
Citation:668 F.3d 549
Opinion Judge:SHEPHERD, Circuit Judge.
Party Name:Dennis W. STRUTTON, Plaintiff-Appellant, v. Linda MEADE, Psych I; Mary Weiler, LCSW; Jonathan Rosenboom, Sr., Psy.; Rebecca Semar, Act. III, Rec. Ther.; Alan Blake; Missouri Department of Mental Health, Defendants-Appellees.
Attorney:Roger K. Heidenreich, argued and on the brief, St. Louis, MO, for appellant. Rex Patrick Fennessey, AAG, argued and on the brief, St. Louis, MO, for appellee.
Judge Panel:Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
Case Date:February 03, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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668 F.3d 549 (8th Cir. 2012)

Dennis W. STRUTTON, Plaintiff-Appellant,


Linda MEADE, Psych I; Mary Weiler, LCSW; Jonathan Rosenboom, Sr., Psy.; Rebecca Semar, Act. III, Rec. Ther.; Alan Blake; Missouri Department of Mental Health, Defendants-Appellees.

No. 10-2029.

United States Court of Appeals, Eighth Circuit.

February 3, 2012

Submitted: Feb. 24, 2011.

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[Copyrighted Material Omitted]

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Roger K. Heidenreich, argued and on the brief, St. Louis, MO, for appellant.

Rex Patrick Fennessey, AAG, argued and on the brief, St. Louis, MO, for appellee.

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Dennis W. Strutton filed a pro se 42 U.S.C. § 1983 action, alleging violations of his Fourteenth Amendment due process rights as a civilly-committed resident of the Missouri Sexual Offender Treatment Center (MSOTC). 1 He now appeals the district court's 2 adverse judgment entered after a six-day bench trial. We affirm.


In 1999, Missouri lawmakers passed the Missouri Sexually Violent Predators Act (MSVPA). Under the MSVPA, those persons who are determined to be a " sexually violent predator" 3 are " committed to the

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custody of the director of the department of mental health for control, care and treatment until such time as the person's mental abnormality has so changed that the person is safe to be at large." Mo.Rev.Stat. § 632.495(2). MSOTC conducts annual mental health evaluations of each resident. Those evaluations are presented to the committing court to aid that court in determining whether a given resident should remain committed. The director of the Missouri Department of Mental Health or his designee may endorse a petition for release, but a court or jury ultimately determines whether a person has met the statutory requirements for release. See Mo.Rev.Stat. § 632.498.

MSOTC conducts a treatment program for its residents. Residents are not required to participate in the treatment program, but MSOTC encourages participation. The program consists of four phases, with progress levels within each phase. Phase I is " Engagement" and focuses on engaging the resident in the treatment process with an emphasis on understanding the cognitive behavioral process and the ability of the individual to change thoughts, feelings, and behavior. During Phase II, or " Cognitive Restructuring," the resident works to understand his " offense cycle" and begins to change the thought processes and thinking errors that lead to problem activities. At Phase III, called " Personal Deviant Cycles/Relapse Prevention/Emotional Integration," the individual is fully engaged in the treatment process and is working to establish healthier habits that avoid deviant thought processes and behaviors. The final phase is " Community Re-Integration." During Phase IV, the individual develops the necessary skills and techniques for living in the community at large.

To progress through the four phases, residents are required to participate in psychotherapeutic " process groups," which consist of group discussions led by psychologists and social workers. In the process groups, residents are expected to acknowledge their problems, identify their offense cycles, and learn how to break those cycles. According to defendant Alan Blake, the Chief Operating Officer of the MSOTC, it is impossible for a resident to complete sex offender treatment at the MSOTC without admitting to the crime or crimes that led to the resident's commitment. The therapists leading the process groups work to establish a therapeutic alliance, or rapport, with the members of the groups because the members frequently deny having committed sexual offenses and have difficulty speaking about their offenses. In addition to process groups, MSOTC also offers a variety of psychoeducational classes designed to help the residents learn more about behavior and anger management strategies or addiction behaviors. Participation in these classes is encouraged but not required for a resident to progress through the treatment program.

Budget limitations and staffing shortages have been continuing problems for the MSOTC. Significant shortages in professional staff occurred from the fall of 2006 through the spring of 2007. At that time, the defendants in this action— Blake; Rebecca Semar, former Clinical Director and acting Activity Therapy Coordinator; Mary Weiler, a Clinical Social Worker; Jonathan Rosenboom, the Clinical Director; and Linda Meade, a Psychologist

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— were tasked with the responsibility of responding to the struggles faced by MSOTC. The defendants implemented a series of changes to their psychoeducational courses and process group sessions. Psychoeducational courses were discontinued altogether during this time. On September 28, 2006, MSOTC sent a memorandum to the residents explaining that process groups would be doubling up on group therapists, increasing the size of the groups to the maximum, and placing some residents on a waiting list for future openings in the groups. The change to include co-therapists in each group was implemented so that in the event that a therapist was absent, the group could still be conducted. However, this also resulted in a reduction in the overall number of available groups. Also, the frequency of process group sessions was reduced from three times per week to twice a week, and the three trimester breaks when process groups were not conducted were increased from two weeks in length to four weeks.

For treatment and security purposes, MSOTC officials incorporated a set of rules, the violation of which resulted in a reduction of the resident's progress level and restriction of the resident's movement to a " Restriction Table." A resident assigned to the Restriction Table, which was located near the nurses' station, was not permitted to speak to another person unless that person was also seated at the table, and was only allowed to leave the table for meals, classes, process groups, and for an hour of exercise. Residents would remain at the table from early morning until late evening. Despite its name, residents assigned to the Restriction Table were not physically restrained and were allowed to stand, stretch, get a drink of water, or use the restroom as needed. Violations were categorized as minor, major, and intolerable. A resident who committed a " minor" violation received a two-day assignment to the Restriction Table, " major" violations resulted in a seven-day assignment, and " intolerable" violations yielded a fourteen-day assignment. Assigned days at the Restriction Table could also accumulate, so some residents were subjected to months of time at the Restriction Table due to multiple rule violations. Additionally, residents who committed violations, and thus were assigned to the Restriction Table, were reverted to earlier treatment phases or progress levels within a given treatment phase.

Sometime after August 2007, use of the Restriction Table was discontinued, and MSOTC implemented the use of a Restriction Area. This Area was usually the facility's day hall where residents could be closely monitored by MSOTC staff. In addition to adopting the use of the Restriction Area, MSOTC no longer tied a resident's progress through treatment phases to a violation of the institution's rules.


In 1997, Strutton pled guilty to first degree child molestation in Missouri state court. As part of his plea, he stipulated to being a " sexually violent predator" as defined by the MSVPA. After serving his term of imprisonment, Strutton was involuntarily committed in 2002 for an indefinite period of time to the MSOTC. When he first arrived at the MSOTC, Strutton rarely attended treatment classes, submitted multiple grievances about the classes he was asked to take and treatment he received, and was disruptive towards fellow residents and the nursing staff. While attending one progress group, Strutton was so disruptive that other members of the group threatened to quit.

In January 2006, Strutton joined a Phase I, or " Engagement," process group

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led by Deanna Wolf, a psychological resident who worked at MSOTC from September 2004 through September 2006. Wolf testified that prior to joining her group, Strutton had refused treatment for the majority of his time at the MSOTC. She noted that in June 2006, Strutton's participation with the group varied based on his mood, but that by July, she felt that she was building some trust with him. According to a September 25, 2006 progress note, Wolf recorded, " Group started pulling back together. Mr. Strutton increased participation during groups and began being more receptive to feedback as well as providing feedback to peers. At times engaged in impression management." Wolf quit working at MSOTC after September 2006.

Strutton also testified about his treatment, recounting how he was transferred in late 2006 to a different process group led by a different staff member. After this transfer, he ultimately quit attending the process group because of purported conflicts with his family and because of conflicts he had with the new group leader, Marisa Richardson. In his testimony, Strutton staunchly maintained that he would not participate in any treatment that required him to admit past sexual offenses. He filed at least two habeas corpus petitions in federal court seeking release on the basis of actual innocence. He also testified that he often refused to attend process groups because of his Wiccan religious beliefs, but he acknowledged that nothing in those beliefs would prevent him from admitting past sexual offenses. Records from the MSOTC admitted into evidence before the district court demonstrate that Strutton was given multiple opportunities to attend process groups after he was transferred away from Wolf's process group in 2006. These records also show that Strutton only...

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