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Spencer v. Lombardi

Court of Appeals of Missouri, Western District, Second Division

October 4, 2016

GEORGE LOMBARDI, et al., Respondents.

         Appeal 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

          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.


         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 (1994).

         Spencer appealed.


         I.Preservation of ...

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