Spencer v. Lombardi

• Decision Date: 04 October 2016
• Docket Number: WD 79134
• Citation: Spencer v. Lombardi, 500 S.W.3d 885 (Mo. App. 2016)
• Parties: Frederick Spencer, Appellant, v. George Lombardi, et al., Respondents.
• Court: Missouri Court of Appeals

500 S.W.3d 885

Frederick Spencer, Appellant,

v.George Lombardi, et al., Respondents.

WD 79134

Missouri Court of Appeals, Western District.

OPINION FILED: October 4, 2016

Frederick Spencer, St. Louis, MO, Appellant, pro se,

Chris Koster, Attorney General, Emily A. Dodge, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondents.

Before Division Two: Karen King Mitchell, Presiding Judge, and Cynthia L. Martin and Gary D. Witt, Judges

Karen King Mitchell, Presiding Judge

Frederick Spencer, previously an offender in the custody of the Missouri Department of Corrections, appeals from the trial court's dismissal of his action brought under 42 U.S.C. § 1983 against Department Director George Lombardi, as well as the individual members of the Board of Probation and Parole (“Board”), for extending his conditional release date from prison. We affirm.

Background

When reviewing the dismissal of a petition for failure to state a claim upon which relief may be granted, we assume all facts in the petition as true. Lynch v. Lynch , 260 S.W.3d 834, 836 (Mo.banc 2008). Here, due to deficiencies in Spencer's pleadings, the factual record is sparse. In order to provide a more complete picture of the posture of this litigation, we will begin with a summary of the procedural history that precedes the filing of this case.

A jury found Spencer, a psychologist, guilty of three counts of forcible rape and three counts of forcible sodomy of two of his patients. The circuit court sentenced him to fifteen years in the Department. The convictions and sentences were upheld by State v. Spencer , 50 S.W.3d 869 (Mo.App.E.D.2001). Spencer then sought post-conviction relief, which the trial court denied following an evidentiary hearing. That denial was upheld by Spencer v. State , 156 S.W.3d 365, 366 (Mo.App.E.D.2004). Three years later, Spencer unsuccessfully sought to reopen his post-conviction relief proceedings. Spencer v. State , 255 S.W.3d 527, 528–29 (Mo.App.E.D.2008).

The Board initially notified Spencer that he was scheduled to be conditionally released on February 5, 2010.¹ However, due to Spencer's failure to complete the Missouri Sex Offender Program (“MoSOP”), his initial conditional release date was extended. Spencer brought an action for declaratory and injunctive relief, alleging that he was terminated from MoSOP because he refused to admit or acknowledge guilt for his convictions of rape or forcible sodomy. Spencer v. State , 334 S.W.3d 559, 561 (Mo.App.W.D.2010). In his 2010 case, Spencer contended that requiring him to complete MoSOP, and therefore acknowledge guilt, in order to be eligible for conditional release violated his constitutional rights, causing him to “be required to serve 100% of his sentence in prison.” Id. at 562. The circuit court dismissed the declaratory judgment action with prejudice, finding that Spencer had failed to state a claim for relief. Id. at 561–62. This court affirmed, concluding that the requirement that an offender admit that he was guilty of the sex offenses of which he was convicted as a condition for successful MoSOP completion does not violate his Fifth Amendment rights. Id. at 568. Spencer was ultimately released on October 5, 2014, the last day of his sentence.

Following his release from incarceration, Spencer filed the instant action, asserting § 1983 claims against Director Lombardi and the members of the Board. Spencer's petition includes no allegations specific as to Lombardi or the Board members individually. Rather, his allegations are made as to “all Defendants.” Spencer asserted that the Defendants' “cancellation” of his February 5, 2010 conditional release date resulted in his “unconstitutional and illegal incarceration between February 6, 2010 and October 5, 2014.” Spencer sought monetary “damages of at least $2[,]000 per day” for each day he was incarcerated “for the period of February 6, 2010 thru [sic] October 5, 2014.” The petition sets forth three claims.

In his first count, Spencer claims the “Defendants” deliberately, knowingly, and intentionally cancelled his mandatory conditional release date and kept him incarcerated for an additional 56 months by repeatedly refusing to provide mandatory treatment services, required under § 589.040. He claims that he was punished for the exercise of his First and Fourteenth Amendment rights by the cancellation of his right to mandatory release. In his second count, Spencer claims that he was denied his conditional release date because he exercised his Fifth Amendment right not to be forced to give compelled testimony, in that he would not admit he was guilty of crimes for which he asserted his innocence. In his third count, Spencer alleged that he had a conditional release extension hearing on December 8, 2009, after which the Board lost jurisdiction to extend his conditional release date by “not making a timely decision ... within the 15 working day period required under [§] 558.011.5.” Spencer alleged that the “Defendants,” in order to cure this “jurisdictional” defect, fraudulently represented that the decision to extend his conditional release date had been made on December 29, 2009, but later “formally admitted the decision was actually made on January 6, 2010.”

The Board members and Lombardi filed a motion to dismiss, which the trial court granted. The trial court held that the members of the Board were entitled to absolute immunity, that Spencer failed to state a claim against Lombardi, and that all of the claims were barred by the Supreme Court's decision in Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

Spencer appealed.

Analysis

I. Preservation of alleged error.

We must begin with a review of Spencer's brief in order to determine what, if any, issues he has preserved. Spencer makes a number of arguments throughout his brief, but an appellant's “argument is limited to only those errors asserted in the points relied on.” Crest Constr. II, Inc. v. Hart , 487 S.W.3d 85, 90 n. 5 (Mo.App.W.D.2016) (quoting Stickley v. Auto Credit, Inc. , 53 S.W.3d 560, 563 (Mo.App.W.D.2001) ).

Spencer's first point states that the trial court erred in holding that “Lombardi[ ] enjoyed absolute immunity.” The trial court made no such holding. Rather, the trial court held that the Board members were entitled to absolute immunity. Spencer's point makes no mention whatsoever as to the Board members, and certainly makes no challenge to the trial court's holding that they were entitled to absolute immunity. Accordingly, Spencer has waived any challenge as to the dismissal of the Board members on that ground, and we affirm their dismissal. State v. Brightman , 388 S.W.3d 192, 196 n. 4 (Mo.App.W.D.2012) (An appellant “waive[s] appellate review of [an] issue by failing to raise the merits of this claim in” his point.).

Spencer has also arguably waived any challenge to the trial court's dismissal of Lombardi. Again, the trial court dismissed the claims against Lombardi because Spencer “fail[ed] to state a claim upon which relief may be granted.” The trial court's ruling appears to be based on Lombardi's motion to dismiss, wherein he argued that Spencer had failed to allege that Lombardi had personally participated in any of the challenged conduct. Spencer's point argues that the trial court erred in holding that “Lombardi[ ] enjoyed absolute immunity,” again a holding that the trial court never made. Spencer also argues that the trial court erred in concluding that he failed to state a claim, and he asserts that he “sufficiently pled that the intentional conduct of Defendant Lombardi violated ... [Spencer's rights] by acting without any jurisdiction and by intentionally denying [Spencer] his right to procedural due process.”

Accordingly, the point can be read to address the trial court's dismissal of Lombardi based on both absolute immunity (a holding the trial court did not make), and for failure to state a claim (a holding it did make). Read in this manner, the point is “multifarious in that it collapses disparate contentions of error into a single point relied on contrary to Rule 84.04(d).” Atkins v. McPhetridge , 213 S.W.3d 116, 120 (Mo.App.S.D.2006). “Improper points relied on, including those that are multifarious, preserve nothing for appellate review.” Martin v. Reed , 147 S.W.3d 860, 863 (Mo.App.S.D.2004) (quoting Stelts v. Stelts , 126 S.W.3d 499, 504 (Mo.App.S.D.2004) ). Nevertheless, our preference is to resolve cases on the merits. To the extent we are “able to understand the nature of the claim[s] presented, and” Lombardi was “able to understand and effectively address those claim[s] in [his] responsive brief, we exercise our discretion to review [Spencer's] claims ex gratia .” Powell v. City of Kansas City , 472 S.W.3d 219, 225 n.9 (Mo.App.W.D.2015). Accordingly, we will review Spencer's argument that he alleged facts sufficient to show that Lombardi actively participated in an effort to deprive Spencer of his right to conditional release by extending his conditional release date when jurisdiction to do so had passed under § 558.011.²

II. Standard of review.

“Appellate review of a trial court's grant of a motion to dismiss is de novo. ” Kixmiller v. Bd. of Curators of Lincoln Univ. , 341 S.W.3d 711, 713 (Mo.App.W.D.2011). “A motion to dismiss for failure to state a claim ‘is solely a test of the adequacy of the plaintiff's petition.’ ” Id. (quoting City of Lake St. Louis v. City of O'Fallon , 324 S.W.3d 756, 759 (Mo.banc 2010) ). “A court reviews the petition in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Id. (quoting City of Lake St. Louis , 324 S.W.3d at 759 ). “The court treats the plaintiff's averments as true and liberally grants the plaintiff all reasonable inferences.” Id. “The credibility or persuasiveness of the facts alleged are not weighed.” Id.

III. Spencer failed to state a claim.

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