Persechini v. Callaway

• Decision Date: 14 September 2011
• Docket Number: No. 10–1867.,10–1867.
• Citation: 651 F.3d 802
• Parties: Michael Louis PERSECHINI, Plaintiff–Appellant,v.L. CALLAWAY; Sheriff Jerry Smith; Brian O'Connell; Virgil Landsdown; Patricia Cornell, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

651 F.3d 802

Michael Louis PERSECHINI, Plaintiff–Appellant,

v.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.

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

I.

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 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 Division Director Patricia Cornell denied his grievance on the merits despite the fact that Hearing Officer Callaway's Disciplinary Action Report was facially deficient because the “Evidence Relied On” section was not completed.

II.

To prevail on his § 1983 due process claims, Persechini must establish that he was deprived of a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). “Protected liberty interests may arise from two sources—the Due Process Clause itself and the laws of the States.” Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (quotation omitted). In this rather unique case, both potential sources must be explored.

In Sandin, the Supreme Court refocused the inquiry into the second source of liberty interests—whether the State has created a liberty interest if the alleged deprivation is an adverse change in an inmate's conditions of confinement. When the Due Process Clause does not itself confer a liberty interest, the Court explained, whether state law has created a protected interest turns on whether the challenged conditions impose “atypical or significant hardship ... in relation to the ordinary incidents of prison life.” 515 U.S. at 484, 115 S.Ct. 2293. In applying this standard, we bear in mind that a liberty interest “is an interest in the nature of [the inmate's] confinement, not an interest in the procedures by which the state believes it can best determine how he should be confined.” Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir.2010), quoting Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir.1996).

In this case, the Department first conducted a misconduct proceeding that affected only Persechini's conditions of confinement. He was accused of stealing a towel from the property room. Defendant Callaway held a hearing and concluded that he was guilty of the charges, based on his guilty plea after an interview. The sanctions were confinement to his room for ten days, and a referral to the Program Review Committee because he had violated a Cardinal Rule. Persechini does not claim, and could not plausibly claim, that these hardships are either atypical or significant. Therefore, he had no protected liberty interest in the outcome of this routine disciplinary proceeding, and the district court properly dismissed his due process claims against the four defendants who were involved only in this proceeding and in the denial of Persechini's grievance protesting its outcome—Callaway, O'Connell, Landsdown, and Cornell—and the claim against Smith for approving Callaway's allegedly deficient Disciplinary Action Report.

More serious adverse consequences resulted from the separate action taken by the Program Review Committee, chaired by defendant Smith. This was not a mere ministerial action—a 2004 Department procedure provided that, when the Committee received a referral from a disciplinary hearing officer, its options included no fewer than eight alternative recommendations, ranging from no action to termination from the treatment program.³ Here, the Committee elected termination. One result of this action is that Persechini was denied the benefits of long-term drug treatment and transferred to a more restrictive prison facility.⁴

Persechini argues that this claim was improperly dismissed because he had a plausible liberty interest in avoiding the “atypical and significant hardship” of termination from the long-term substance-abuse...