                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-2029
                                   ___________

Dennis W. Strutton,                  *
                                     *
            Plaintiff–Appellant,     *
                                     *       Appeal from the United States
      v.                             *       District Court for the
                                     *       Eastern District of Missouri.
Linda Meade, Psych I; Mary Weiler,   *
LCSW; Jonathan Rosenboom, Sr., Psy.; *
Rebecca Semar, Act. III, Rec. Ther.; *
Alan Blake; Missouri Department of   *
Mental Health,                       *
                                     *
            Defendants–Appellees.    *

                                   ___________

                             Submitted: February 24, 2011
                                Filed: February 3, 2012
                                 ___________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
                          ___________

SHEPHERD, Circuit Judge.

       Dennis W. Strutton filed a pro se 42 U.S.C. § 1983 action, alleging violations
of his Fourteenth Amendment due process rights as a civilly-committed resident of
the Missouri Sexual Offender Treatment Center (MSOTC).1 He now appeals the
district court’s2 adverse judgment entered after a six-day bench trial. We affirm.

                                           I.

       In 1999, Missouri lawmakers passed the Missouri Sexually Violent Predators
Act (MSVPA). Under the MSVPA, those persons who are determined to be a
“sexually violent predator”3 are “committed to the custody of the director of the
department of mental health for control, care and treatment until such time as the
person’s mental abnormality has so changed that the person is safe to be at large.”
Mo. Rev. Stat. § 632.495(2). MSOTC conducts annual mental health evaluations of
each resident. Those evaluations are presented to the committing court to aid that
court in determining whether a given resident should remain committed. The director
of the Missouri Department of Mental Health or his designee may endorse a petition
for release, but a court or jury ultimately determines whether a person has met the
statutory requirements for release. See Mo. Rev. Stat. § 632.498.

      MSOTC conducts a treatment program for its residents. Residents are not
required to participate in the treatment program, but MSOTC encourages


      1
        MSOTC has been renamed the Sexual Offender Rehabilitation Treatment
Service and is now affiliated with the Southeast Missouri Mental Health Center. For
clarity’s sake, this opinion will continue to refer to the center as MSOTC.
      2
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
      3
       “Sexually violent predator” is defined as “any person who suffers from a
mental abnormality which makes the person more likely than not to engage in
predatory acts of sexual violence if not confined in a secure facility and who: (a) Has
pled guilty or been found guilty, or been found not guilty by reason of mental disease
or defect . . . , of a sexually violent offense; or (b) Has been committed as a criminal
sexual psychopath . . . .” Mo. Rev. Stat. § 632.480(5).

                                          -2-
participation. The program consists of four phases, with progress levels within each
phase. Phase I is “Engagement” and focuses on engaging the resident in the treatment
process with an emphasis on understanding the cognitive behavioral process and the
ability of the individual to change thoughts, feelings, and behavior. During Phase II,
or “Cognitive Restructuring,” the resident works to understand his “offense cycle” and
begins to change the thought processes and thinking errors that lead to problem
activities.      At Phase III, called “Personal Deviant Cycles/Relapse
Prevention/Emotional Integration,” the individual is fully engaged in the treatment
process and is working to establish healthier habits that avoid deviant thought
processes and behaviors. The final phase is “Community Re-Integration.” During
Phase IV, the individual develops the necessary skills and techniques for living in the
community at large.

       To progress through the four phases, residents are required to participate in
psychotherapeutic “process groups,” which consist of group discussions led by
psychologists and social workers. In the process groups, residents are expected to
acknowledge their problems, identify their offense cycles, and learn how to break
those cycles. According to defendant Alan Blake, the Chief Operating Officer of the
MSOTC, it is impossible for a resident to complete sex offender treatment at the
MSOTC without admitting to the crime or crimes that led to the resident’s
commitment. The therapists leading the process groups work to establish a
therapeutic alliance, or rapport, with the members of the groups because the members
frequently deny having committed sexual offenses and have difficulty speaking about
their offenses. In addition to process groups, MSOTC also offers a variety of
psychoeducational classes designed to help the residents learn more about behavior
and anger management strategies or addiction behaviors. Participation in these classes
is encouraged but not required for a resident to progress through the treatment
program.




                                          -3-
       Budget limitations and staffing shortages have been continuing problems for
the MSOTC. Significant shortages in professional staff occurred from the fall of 2006
through the spring of 2007. At that time, the defendants in this action—Blake;
Rebecca Semar, former Clinical Director and acting Activity Therapy Coordinator;
Mary Weiler, a Clinical Social Worker; Jonathan Rosenboom, the Clinical Director;
and Linda Meade, a Psychologist—were tasked with the responsibility of responding
to the struggles faced by MSOTC. The defendants implemented a series of changes
to their psychoeducational courses and process group sessions. Psychoeducational
courses were discontinued altogether during this time. On September 28, 2006,
MSOTC sent a memorandum to the residents explaining that process groups would
be doubling up on group therapists, increasing the size of the groups to the maximum,
and placing some residents on a waiting list for future openings in the groups. The
change to include co-therapists in each group was implemented so that in the event
that a therapist was absent, the group could still be conducted. However, this also
resulted in a reduction in the overall number of available groups. Also, the frequency
of process group sessions was reduced from three times per week to twice a week, and
the three trimester breaks when process groups were not conducted were increased
from two weeks in length to four weeks.

        For treatment and security purposes, MSOTC officials incorporated a set of
rules, the violation of which resulted in a reduction of the resident’s progress level and
restriction of the resident’s movement to a “Restriction Table.” A resident assigned
to the Restriction Table, which was located near the nurses’ station, was not permitted
to speak to another person unless that person was also seated at the table, and was only
allowed to leave the table for meals, classes, process groups, and for an hour of
exercise. Residents would remain at the table from early morning until late evening.
Despite its name, residents assigned to the Restriction Table were not physically
restrained and were allowed to stand, stretch, get a drink of water, or use the restroom
as needed. Violations were categorized as minor, major, and intolerable. A resident
who committed a “minor” violation received a two-day assignment to the Restriction

                                           -4-
Table, “major” violations resulted in a seven-day assignment, and “intolerable”
violations yielded a fourteen-day assignment. Assigned days at the Restriction Table
could also accumulate, so some residents were subjected to months of time at the
Restriction Table due to multiple rule violations. Additionally, residents who
committed violations, and thus were assigned to the Restriction Table, were reverted
to earlier treatment phases or progress levels within a given treatment phase.

       Sometime after August 2007, use of the Restriction Table was discontinued,
and MSOTC implemented the use of a Restriction Area. This Area was usually the
facility’s day hall where residents could be closely monitored by MSOTC staff. In
addition to adopting the use of the Restriction Area, MSOTC no longer tied a
resident’s progress through treatment phases to a violation of the institution’s rules.

                                          II.

      In 1997, Strutton pled guilty to first degree child molestation in Missouri state
court. As part of his plea, he stipulated to being a “sexually violent predator” as
defined by the MSVPA. After serving his term of imprisonment, Strutton was
involuntarily committed in 2002 for an indefinite period of time to the MSOTC.
When he first arrived at the MSOTC, Strutton rarely attended treatment classes,
submitted multiple grievances about the classes he was asked to take and treatment he
received, and was disruptive towards fellow residents and the nursing staff. While
attending one progress group, Strutton was so disruptive that other members of the
group threatened to quit.

      In January 2006, Strutton joined a Phase I, or “Engagement,” process group led
by Deanna Wolf, a psychological resident who worked at MSOTC from September
2004 through September 2006. Wolf testified that prior to joining her group, Strutton
had refused treatment for the majority of his time at the MSOTC. She noted that in
June 2006, Strutton’s participation with the group varied based on his mood, but that

                                          -5-
by July, she felt that she was building some trust with him. According to a September
25, 2006 progress note, Wolf recorded, “Group started pulling back together. Mr.
Strutton increased participation during groups and began being more receptive to
feedback as well as providing feedback to peers. At times engaged in impression
management.” Wolf quit working at MSOTC after September 2006.

       Strutton also testified about his treatment, recounting how he was transferred
in late 2006 to a different process group led by a different staff member. After this
transfer, he ultimately quit attending the process group because of purported conflicts
with his family and because of conflicts he had with the new group leader, Marisa
Richardson. In his testimony, Strutton staunchly maintained that he would not
participate in any treatment that required him to admit past sexual offenses. He filed
at least two habeas corpus petitions in federal court seeking release on the basis of
actual innocence. He also testified that he often refused to attend process groups
because of his Wiccan religious beliefs, but he acknowledged that nothing in those
beliefs would prevent him from admitting past sexual offenses. Records from the
MSOTC admitted into evidence before the district court demonstrate that Strutton was
given multiple opportunities to attend process groups after he was transferred away
from Wolf’s process group in 2006. These records also show that Strutton only
sporadically attended. When he did attend, he was not progressing in treatment and
frequently was disruptive in the group.

                                         III.

      Strutton initiated this lawsuit claiming, as relevant, that his Fourteenth
Amendment substantive due process rights were violated by defendants’ failure to
provide him with consistent access to adequate mental health treatment and by the
MSOTC’s use of disciplinary measures that serve no therapeutic purpose. Strutton
sought declaratory relief finding the challenged practices were unconstitutional and
equitable relief requiring defendants to provide uninterrupted access to an adequate

                                          -6-
treatment program and to cease use of the Restriction Table or Restriction Area as a
means of disciplinary measures. During the pendency of the case, Strutton also sought
sanctions against defendants for their failure to preserve emails and other records after
he began this action.

        After hearing six days of testimony and considering numerous exhibits, the
district court issued a thorough opinion recounting in detail the testimony and
evidence presented at trial. As relevant to the issues in this appeal, the district court
first determined that Strutton had standing to pursue his claims and that the issues
were not moot. Next, the district court held that Strutton did not have a fundamental
right to treatment while committed to the MSOTC. The district court explained that
any right to treatment possessed by Strutton arose under Missouri statute and that to
establish a Fourteenth Amendment claim, Strutton had to show that the inadequacies
in the treatment he received were so arbitrary or egregious as to shock the conscience.
Although the district court determined that the temporary elimination of
psychoeducational courses and the limitations imposed on process groups fell below
an acceptable professional standard, the court also held that treatment made available
to Strutton was not conscience-shockingly deficient. Finally, the district court held
that “Strutton’s allegations concerning the Restriction Table d[id] not implicate [a
fundamental right] and its corresponding professional judgment standard” because
Strutton was not physically restrained to the table. Nor did the court find the use of
the Restriction Table to be conscience-shocking, due in large measure to Strutton’s
ability to stand, walk about, use the restroom, attend meals, and attend classes or
process groups.

       On appeal, Strutton claims that the district court erred when (1) it determined
Strutton did not have a fundamental liberty interest in receiving treatment, (2) it
applied a conscience-shocking standard to Strutton’s claim of unconstitutional
treatment, (3) assessed only the physical restraints imposed by the Restriction Table
and Restriction Area and did not consider the impact of rules violations on Strutton’s

                                           -7-
progress in treatment, and (4) applied the conscience-shocking standard to Strutton’s
claims concerning the use of the Restriction Table and Restriction Area. Also,
Strutton argues that the defendants failed to preserve documents and emails after he
filed his lawsuit, and thus defendants destroyed important documents. Strutton claims
this was done in bad faith and resulted in prejudice to him, and thus the district court
improperly denied his motion for sanctions. Defendants challenge the district court’s
holding as to the issues of standing and mootness.

                                           A.

       In its responsive brief, the government defendants argue that the district court
and this court lack jurisdiction to consider whether the treatment program or the use
of the Restriction Table or Restriction Area violated Strutton’s constitutional rights
because Strutton lacks standing to bring this suit and because the issues are moot.
These jurisdictional challenges must be considered as a threshold question, even
though the defendants failed to file a cross-appeal on the issue. Constitution Party of
S.D. v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011).

        “Article III establishes three elements as a constitutional minimum for a party
to have standing: (1) ‘an injury in fact,’ meaning ‘the actual or imminent invasion of
a concrete and particularized legal interest’; (2) a causal connection between the
alleged injury and the challenged action of the defendant; and (3) a likelihood that the
injury will be redressed by a favorable decision of the court.” Sierra Club v. U.S.
Army Corps of Eng’rs, 645 F.3d 978, 985-86 (8th Cir. 2011) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “This means that, throughout
the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury
traceable to the defendant and likely to be redressed by a favorable judicial decision.’”
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont’l Bank Corp., 494
U.S. 472, 477 (1990)).



                                           -8-
        Here, defendants contend that Strutton has failed to satisfy the causation
element, arguing that Strutton’s lack of progression was due to his own unwillingness
to admit his index offense rather than to the interruption of process groups and the
cancellation of psychoeducational classes in 2006. As the district court found,
however, there was considerable evidence presented concerning the difficulty of
engaging sex offenders in treatment, with testimony that as many as 98% of offenders
initially refuse to accept responsibility for their actions. Also, the testimony
demonstrated that while admitting the index offense was a necessary component of
completing treatment, initial stages of treatment, specifically during the engagement
phase, did not require admission of the index offense. Further, as it pertains to
Strutton, the evidence showed that he participated in a process group and that his
participation ended when the MSOTC modified available treatment offerings in
response to staffing challenges. Thus, we agree with the district court that Strutton
demonstrated that his alleged injury of not advancing in treatment was not due solely
to his own recalcitrance and could be due to the lack of adequate treatment resources.
We also agree that this injury would be redressable if the court, in accordance with
Strutton’s requested relief, ordered defendants to provide Strutton with consistent
access to appropriate treatment. See Spencer, 523 U.S. at 7.

        Defendants also contend that the issue of whether disruptions in the treatment
violated Strutton’s constitutional rights is now moot. Mere voluntary cessation of a
challenged action does not moot a case. Rather a case becomes moot “if subsequent
events made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated
Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)). The burden of showing that the
challenged conduct is unlikely to recur rests on the party asserting mootness. Id.
Defendants here have not met that burden. Defendants assert the conditions giving
rise to this action are not presently in place due to changes they made at MSOTC, and
they assert that there is no evidence that the complained-of conditions will necessarily

                                          -9-
happen again. They fail to show, however, that the conditions “could not reasonably
be expected to recur” in the event of future budgetary and staffing restrictions. Id.
Accordingly, we agree with the district court that this issue is not moot.

       We similarly reject defendants’ standing and mootness arguments pertaining
to MSOTC’s use of the Restriction Table. Strutton asserted—and there was evidence
presented at trial to support his claim—that MSOTC’s use of the Restriction Table
was “clinically defeating,” and the mere transition to a Restriction Area would not
alleviate the concerns expressed by experts concerning the use of this disciplinary
tactic. Moreover, the issue is not moot because Strutton remains confined at MSOTC
and subject to both the MSOTC’s evolving disciplinary measures and the related
therapeutic impact of those decisions on his progress. Cf. Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985) (holding prisoner’s claim for equitable and declaratory
remedy was moot where prisoner was no longer subject to the challenged conditions).

                                            B.

        We next address whether the district court erred when it determined that
Strutton did not suffer a Fourteenth Amendment violation based on the treatment he
received and the use of the Restriction Table at MSOTC. As this is an appeal from
a civil bench trial, we review the district court’s factual findings for clear error and its
legal conclusions de novo. See King v. United States, 553 F.3d 1156, 1160 (8th Cir.
2009). Strutton maintains that, as a matter of law, the district court should have
applied the Youngberg “professional judgment” standard, as opposed to the
“conscience-shocking” standard, in analyzing whether he was subjected to a due
process violation. See Youngberg v. Romeo, 457 U.S. 307, 320-22 (1982).

     In Youngberg, the Supreme Court addressed the question of whether Nicholas
Romeo, a mentally handicapped man who had been involuntarily committed to a
Pennsylvania state institution, had a constitutional right to treatment. Romeo was

                                           -10-
committed to the Pennhurst State School and Hospital. At Pennhurst, Romeo suffered
numerous injuries due to his own violence and the violence of others. For a period of
time, he was routinely restrained physically for prolonged periods of each day. The
Court held that under the Fourteenth Amendment, civilly committed individuals
“enjoy constitutionally protected interests in conditions of reasonable care and safety,
reasonably nonrestrictive confinement conditions, and such training as may be
required by these interests.” Id. at 324. The state is thus obligated to provide “such
training as an appropriate professional would consider reasonable to ensure [the
committed’s] safety and to facilitate his ability to function free from bodily restraints.”
Id. The Supreme Court stressed that “decisions made by the appropriate professional
are entitled to a presumption of correctness.” Id.

       The Court, however, did not address the question of whether an individual
“committed for care and treatment under state law . . . has a state substantive right to
habilitation, which is entitled to substantive . . . protection under the Due Process
Clause of the Fourteenth Amendment.” Id. at 316 n.19. Since Youngberg, some
circuits have adopted a rule that “the Fourteenth Amendment Due Process Clause
requires states to provide civilly-committed persons with access to mental health
treatment that gives them a realistic opportunity to be cured and released.” Sharp v.
Weston, 233 F.3d 1166, 1172 (9th Cir. 2000) (citing Ohlinger v. Watson, 652 F.2d
775, 778 (9th Cir. 1980)). We have not adopted such an approach. Instead we have
held that although “the Supreme Court has recognized a substantive due process right
to reasonably safe custodial conditions, [it has not recognized] a broader due process
right to appropriate or effective or reasonable treatment of the illness or disability that
triggered the patient’s involuntary confinement.” See Elizabeth M. v. Montenez, 458
F.3d 779, 788 (8th Cir. 2006); Bailey v. Gardebring, 940 F.2d 1150, 1154 (8th Cir.
1991) (holding that person who was civilly committed for purposes of safe-keeping
did not have a constitutional right to psychiatric treatment for pedophilia), see also




                                           -11-
Kansas v. Hendricks, 521 U.S. 346, 366 (1997) (“[W]e have never held that the
Constitution prevents a State from civilly detaining those for whom no treatment is
available.”).

       The district court was correct that Strutton does not have a fundamental due
process right to sex offender treatment. Accordingly, Youngberg’s “professional
judgment” standard does not apply to this case. Strutton’s due process claim
originates from the state statutory mandate to provide for Strutton’s confinement “for
control, care and treatment until such time as [his] mental abnormality has so changed
that [he] is safe to be at large.” Mo. Rev. Stat. § 632.495(2). We remain cautious not
to turn every alleged state law violation into a constitutional claim. Only in the rare
situation when the state action is “truly egregious and extraordinary” will a
substantive due process claim arise. See Chesterfield Dev. Corp. v. City of
Chesterfield, 963 F.2d 1102, 1104-05 (8th Cir. 1992). This is why the district court
properly analyzed Strutton’s claims to determine whether the state action of
eliminating the psychoeducational classes and modifying the process groups was so
arbitrary or egregious as to shock the conscience. See United States v. Salerno, 481
U.S. 739, 746 (1987) (“So-called ‘substantive due process’ prevents the government
from engaging in conduct that ‘shocks the conscience,’ . . . or interferes with rights
‘implicit in the concept of ordered liberty.’” (quoting Rochin v. California, 342 U.S.
165, 172 (1952) and Palko v. Connecticut, 302 U.S. 319, 325–326 (1937))).

        Through the conscience-shocking prism, we reach the same result as the district
court. Although the treatment Strutton received may have been less than ideal, and
perhaps even inadequate by professional standards, it was not so lacking as to shock
the conscience. After reviewing the considerable trial record developed by the district
court, we can confidently agree with the lower court’s finding that budget shortfalls
and staffing shortages resulted in treatment modifications that were below the
standards set in place by MSOTC’s directors. However, the temporary modifications
in the treatment regimen of eliminating psychoeducational classes and increasing the

                                         -12-
size of process groups was neither arbitrary nor egregious. Rather, MSOTC sought
to maintain essential treatment services in light of the challenges it faced. Perhaps
different choices could have been made, but it would be improper for this court to
review these decisions in hindsight, absent a determination that the decisions shock
the conscience. Accordingly, we affirm the district court’s determination that Strutton
failed to prove his substantive due process claim.

       We similarly reject Strutton’s argument that MSOTC’s use of the Restriction
Table and later use of the Restriction Area violated Strutton’s Fourteenth Amendment
due process rights. The district court found that those residents assigned to the
Restriction Table or Restriction Area retained “a comparatively free range of
movement and activities” including the ability “to get up and stretch, to leave to attend
group sessions and meetings, to converse with other residents, to work on homework
or legal issues, and to play cards.” Because Strutton was not physically restrained
while he was assigned to the Restriction Table or Restriction Area, Youngberg’s
“professional judgment” standard is again inapplicable. Even in Youngberg, the
Court recognized the difficulty of maintaining order and discipline among those who
have been civilly detained. See Youngberg, 457 U.S. at 320. At trial, several
witnesses testified about the need to regulate the behavior of the residents at MSOTC.
According to Blake, the purpose of the Restriction Table was to place the offending
resident in an environment where he could be closely observed by staff, reflect on his
actions, and better learn to control impulsive behavior. Strutton’s expert
acknowledged that “reasonable clinical judgment” was used in implementing the
Restriction Table, but suggested that it was not “particularly effective” in its
application. Again, we find ourselves in agreement with the district court that nothing
about MSOTC’s use of the Restriction Table was so egregious as to shock the
conscience, and therefore Strutton has failed to prove a substantive due process
violation in the use of the Restriction Table or Restriction Area.




                                          -13-
                                           IV.

        Finally, we address Strutton’s appeal of the district court’s denial of sanctions
against defendants. The district court retains an inherent power to impose sanctions,
and we review the use of that authority for abuse of discretion. Stevenson v. Union
Pac. RR. Co., 354 F.3d 739, 745 (8th Cir. 2004). Strutton argues that upon his filing
of this action, defendants were under an obligation to prevent the destruction of any
evidence that could be related to the case and that defendants’ failure to impose a
litigation hold over agency e-mails warranted the imposition of sanctions. At the
hearing on the motion for sanctions, the defendants explained that there was a
consolidation of the information technology systems of multiple state agencies in
2006 and that e-mails were deleted in an effort to free up server space on the
consolidated system. The district court noted that “[t]here’s no doubt that after the
notice of the lawsuit there was an intentional destruction [of agency e-mails], [though]
not perhaps with a fraudulent intent as to this case.” (Mot. Hr’g Tr. 26.) The district
court determined that the “Defendants’ failure to maintain and produce treatment
records, including their failure to impose a litigation hold on facility e-mails after Mr.
Strutton filed this suit, is very troubling” but did not find that sanctions were
warranted. (Mem. Opinion, Doc. 248, pg. 24, n.7.) See Greyhound Lines, Inc. v.
Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) (“The ultimate focus for imposing
sanctions for spoliation of evidence is the intentional destruction of evidence
indicating a desire to suppress the truth[.]”). Accordingly, the decision to deny the
imposition of sanctions was not an abuse of the considerable discretion given to the
district court. See Menz v. New Holland N. Am., Inc., 440 F.3d 1002, 1005 (8th Cir.
2006) (“A district court would necessarily abuse its discretion if it based its ruling on
an erroneous view of the law or on a clearly erroneous assessment of the evidence.”
(quoting Plaintiffs’ Baycol Steering Comm. v. Bayer Corp., 419 F.3d 794, 802 (8th
Cir. 2005))).




                                          -14-
                                         V.

       Accordingly, we affirm the district court’s finding in favor of defendants and
its denial of plaintiff’s motion for sanctions.
                          ______________________________




                                        -15-
