Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Cole County, Missouri The Honorable
Jon E. Beetem, Judge
Before: Karen King Mitchell, Presiding Judge, and Cynthia L.
Martin and Gary D. Witt, Judges
King Mitchell, Presiding Judge
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.
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.
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).
Board initially notified Spencer that he was scheduled to be
conditionally released on February 5, 2010. 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.
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.
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,
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 (1994).
I.Preservation of ...