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Michael Louis Persechini v. L. Callaway; Sheriff Jerry Smith; Brian O'connell; Virgil Landsdown

August 10, 2011


Appeal from the United States District Court for the Western District of Missouri.

The opinion of the court was delivered by: Loken, Circuit Judge.

Submitted: March 17, 2011

Before RILEY, Chief Judge, LOKEN and COLLOTON, Circuit Judges.

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*fn1 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).*fn2


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 ยง 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 ...

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