Persechini v. Callaway, 10–1867.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore RILEY, Chief Judge, LOKEN and COLLOTON, Circuit Judges.
Citation651 F.3d 802
PartiesMichael Louis PERSECHINI, Plaintiff–Appellant,v.L. CALLAWAY; Sheriff Jerry Smith; Brian O'Connell; Virgil Landsdown; Patricia Cornell, Defendants–Appellees.
Docket NumberNo. 10–1867.,10–1867.
Decision Date14 September 2011

651 F.3d 802

Michael Louis PERSECHINI, Plaintiff–Appellant,
L. CALLAWAY; Sheriff Jerry Smith; Brian O'Connell; Virgil Landsdown; Patricia Cornell, Defendants–Appellees.

No. 10–1867.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2011.Filed: Aug. 10, 2011.Rehearing Denied Sept. 14, 2011.

[651 F.3d 804]

Sophie L. Fortin, Law Student, Washington U. School of Law, St. Louis, MO, argued (D. Bruce La Pierre, Prof. of Law, Maria L. Barbu, William A. Ciszewski, Tobias J. Gillett, Thomas A. Haine, Arefa B. Patel, Jenny Q. Shen, Jacob A. Vanzin, Law Students, Washington U. School of Law, Brian C. Walsh, Bryan Cave, LLP, St. Louis, MO, on the brief), for appellant.Cheryl Ann Schuetze, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellees.Before RILEY, Chief Judge, LOKEN and COLLOTON, Circuit Judges.LOKEN, Circuit Judge.

Michael Louis Persechini was convicted of second-degree burglary in a Missouri state court and sentenced to fifteen years in prison. With the prior approval of the Missouri Department of Corrections, the trial court also sentenced him as a chronic nonviolent offender with a serious drug addiction to the Department's long-term substance-abuse treatment program at the Ozark Correctional Center (“OCC”). Had he successfully completed this program, Persechini would have been eligible for probation. See Mo.Rev.Stat. § 217.362(2) & (3). Instead, he was terminated from the program after pleading guilty to violating one of the Department's “cardinal rules,” in this case, theft of a towel from the prison's property room. Termination resulted in the mandatory execution of his fifteen-year sentence. See § 217.362(4).

Persechini then commenced this 42 U.S.C. § 1983 action against five OCC officials, alleging that the program termination violated his federal due process rights. He sought damages and re-entry into the treatment program, with probation eligibility restored upon successful completion. The district court 1 dismissed all claims for failure to state a claim upon which relief could be granted. Persechini appeals. Reviewing the district court's dismissal de novo, we affirm. See Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir.2011) (standard of review).2


The due process issues raised by this appeal are rather unique because of the terms of the applicable sentencing statute. Mo.Rev.Stat. § 217.362 provides, in relevant part:

1. The department of corrections shall design and implement an intensive long-term program for the treatment of chronic nonviolent offenders with serious substance abuse addictions who have not pleaded guilty to or been convicted of a dangerous felony....

2. Prior to sentencing, any judge considering an offender for this program shall notify the department. The potential candidate for the program shall be screened by the department to determine eligibility.... [I]f an offender is eligible and there is adequate space, the court may sentence a person to the program

[651 F.3d 805]

which shall consist of institutional drug or alcohol treatment for a period of at least twelve and no more than twenty-four months, as well as a term of incarceration. The department shall determine the nature, intensity, duration, and completion criteria ... of any program services provided. Execution of the offender's term of incarceration shall be suspended pending completion of said program....

3. Upon successful completion of the program, the board of probation and parole shall advise the sentencing court of an offender's probationary release date thirty days prior to release. If the court determines that probation is not appropriate the court may order the execution of the offender's sentence.

4. If it is determined by the department that the offender has not successfully completed the program, or that the offender is not cooperatively participating in the program, the offender shall be removed from the program and the court shall be advised. Failure of an offender to complete the program shall cause the offender to serve the sentence prescribed by the court and void the right to be considered for probation on this sentence.

(Emphasis added.) For reasons that will become apparent, consideration of these due process issues requires a brief summary of the proceedings conducted by the Department of Corrections and each defendant's role in those proceedings.

Persechini's § 1983 complaint alleged that he appeared before defendant L. Callaway at a disciplinary hearing held to consider a Conduct Violation Report. The Report stated that Persechini had pleaded guilty to charges that he violated “rule # 22.1 Theft” and “rule # 20.1 Disobeying an Order” by taking a new towel from the property room. Persechini claimed that the initial interviewing officer had said he could plead guilty only to the less-serious violation of rule 20.1. He protested that he did not steal the towel and urged Hearing Officer Callaway to contact the interviewing officer and two property room custodians. Instead, Callaway prepared and Persechini signed a Disciplinary Action Report that left blank the section captioned “Findings and Evidence Relied On.” In the “Recommendation” section of the Disciplinary Action Report, Hearing Officer Callaway wrote:

(1) D–3 Living Area Restriction 10 days

(2) C–4 Refer to Program Review Committee

The § 1983 complaint alleged that defendants Jerry Smith and Deputy Warden Brian O'Connell signed the “Recommended as Submitted” and “Approved as Submitted” sections of the Report, knowing the “Evidence Relied On” section was not completed.

Five days later, Persechini appeared before the Program Review Committee, chaired by defendant Jerry Smith. Persechini claimed that he was innocent of theft and asked the Committee to contact a property custodian for exculpatory information. Instead, Smith stated that Persechini was being terminated from the treatment program for a Cardinal Rule violation. He was transferred to administrative segregation and, six days later, appeared at a Classification Hearing. The three-member Classification Committee recorded Persechini's statement—“I didn't steal the towel, I just meant to trade up”—and ordered him transferred to another facility because he had been terminated from the treatment program.

Persechini then filed an Offender Grievance protesting the conduct violation and asking that witnesses be contacted. The § 1983 complaint alleged that OCC Superintendent Virgil Landsdown and Deputy

[651 F.3d 806]

Division Director Patricia Cornell denied his grievance on the merits despite the fact that...

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