                                            In the
                          Missouri Court of Appeals
                                   Western District

                                                
DAMON THOMAS,                                   
                                                   WD77388
                 Appellant,                        OPINION FILED:
v.                                              
                                                   December 16, 2014
LARRY DENNEY, ET AL.,                           
                                                
               Respondents.                     
                                                
                                                


                  Appeal from the Circuit Court of Cole County, Missouri
                      The Honorable Daniel Richard Green, Judge

                     Before Division Four: Alok Ahuja, C.J. Presiding,
                  James Edward Welsh, J., and Tracey Mason-White, Sp.J.


       Damon Thomas appeals the circuit court's judgment dismissing his petition against the

Missouri Department of Corrections and certain of its employees. We affirm.

                                          Background

       Damon Thomas is an inmate under the authority of the Missouri Department of

Corrections ("the Department"). In October 2013, Thomas filed a lawsuit against the

Department and several of its employees raising allegations related to his period of confinement

at Crossroads Correctional Center ("Crossroads"). In addition to the Department, Thomas also

named as defendants Cyndi Prudden, Deputy Division Director, Division of Adult Institutions,

and the following officials at Crossroads: Warden Larry Denney, Assistant Warden Terry Page,
Adjustment Officer K. Herring, and B. Brooke, whose position is stated as "F.U.M."1 The

lawsuit related to disciplinary action taken against Thomas and his subsequent placement in

administrative segregation.

         On February 10, 2012, Defendant Brooke issued Thomas a conduct violation. It alleged

that a year-long investigation had found that Thomas had conspired with other inmates, family

members, and outside civilian personnel "to attempt to introduce contraband believed to be

narcotics into the institution" and had "arranged financial transactions between family members

and other offenders to assist in funding illegal activities." Following a hearing before the

prison's adjustment board, Thomas was found guilty of possession/use of an intoxicating

substance "by engaging in a scheme or plan to introduce a controlled substance into the facility."

Thomas was thereafter placed in administrative segregation and his visits were restricted. He

was in administrative segregation when he filed his lawsuit.2

         In his "Second Amended Petition for Declaratory Judgment and Injunctive Relief,"

Thomas sought judicial review, pursuant to section 536.150 RSMo3 of Missouri's Administrative

Procedures Act ("APA"), of his confinement in administrative segregation. He alleged that the

decision was "unconstitutional, unlawful, unreasonable, arbitrary, capricious, [and] involve[d] an

abuse of discretion." See § 536.150.1. Thomas also alleged that the defendants had subjected

him "to cruel and unusual punishment in violation of the Eighth Amendment to the United States

Constitution." Specifically, he claimed that, "throughout the time [he] was held in segregation,


         1
             We presume that F.U.M. stands for "functional unit manager."
         2
           Thomas's brief suggests (but does not explicitly state) that he was still in administrative segregation when
he filed his brief.
         3
        Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, as updated by the 2011
Cumulative Supplement.

                                                           2
he was housed in filthy conditions, denied showers and denied the minimum three (3) hour[s] out

of cell per week." Among other things, Thomas sought a declaration "that the Findings and

Discipline imposed upon [him] as a result of these proceedings is null and void and [that it] be

dismissed and expunged from [his] record."

         Defendants moved to dismiss Thomas's second amended petition on five grounds. The

first ground, improper service of process on the Department and Prudden, was moot before the

circuit court ruled on the motion due to subsequent service on them. The second ground claimed

that confinement in administrative segregation is not subject to judicial review under section

536.150, because the decision lies solely within the discretion of Department officials and

because the decision is not final. The final three grounds addressed the Eighth Amendment

claim.4 The Respondents argued that Thomas failed to exhaust administrative remedies, that he

failed to allege personal involvement of these specific defendants, and that his requested remedy

failed to redress the alleged harm.

         On February 10, 2014, the circuit court dismissed the petition for "the reasons set out in

the motion to dismiss and reply suggestions thereto."

                                               Standard of Review

         This Court reviews the grant of a motion to dismiss de novo. Phelps v. City of Kansas

City, 371 S.W.3d 909, 912 (Mo. App. 2012). "[T]he pleading is granted its broadest intendment,

all facts alleged are treated as true, and it is construed favorably to the plaintiff to determine

whether the averments invoke substantive principles of law which entitle the plaintiff to relief."
         4
          In their motion to dismiss, the Respondents addressed Thomas's Eighth Amendment claim as a civil rights
claim brought pursuant to 42 U.S.C. §1983. That federal statute imposes liability on "[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Title 42 U.S.C.A. §
1983 (2012). Thomas's petition does not assert that his claims are being brought under that statute.

                                                           3
Farm Bureau Town & Country Ins. Co. of Mo. v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995).

"If the motion to dismiss should have been sustained on any meritorious ground alleged in the

motion, the ruling of the trial court will be affirmed." Id.

                                                   Discussion

         Thomas's five points on appeal correspond to the five grounds set forth in the motion to

dismiss. The first point is moot and need not be discussed.5 In Point II, Thomas asserts that the

circuit court erred in dismissing his claim for judicial review of his placement in administrative

segregation, arguing (1) that section 536.150 of the APA mandates review of the decision despite

the discretion afforded to prison officials under Chapter 217, and (2) that the decision to retain an

inmate in administrative segregation for ninety days following a review hearing is final and

subject to judicial review.

         The APA is set forth in Chapter 536 of the Revised Statutes of Missouri. Section

536.150 provides a system for de novo judicial review of noncontested cases. A hearing for

review of an inmate's placement in administrative segregation is specifically designated "not a

contested case pursuant to the provisions of chapter 536." § 217.375.4. Subsection .1 of section

536.150 provides:

         When any administrative officer or body . . . shall have rendered a decision which
         is not subject to administrative review, determining the legal rights, duties or
         privileges of any person, . . . and there is no other provision for judicial inquiry
         into or review of such decision, such decision may be reviewed by suit for
         injunction, certiorari, mandamus, prohibition or other appropriate action. . . .

§ 536.150.1. That subsection also prohibits courts from infringing on the discretion of

administrative decision makers, however, in its proviso that


         5
        Point I asserts that the circuit court erred by dismissing Thomas's claim against Prudden and the
Department for lack of personal jurisdiction, but both of those defendants were ultimately properly served.

                                                         4
       the [reviewing] court shall not substitute its discretion for discretion legally
       vested in such administrative officer or body, and in cases where the granting or
       withholding of a privilege is committed by law to the sole discretion of such
       administrative officer or body, such discretion lawfully exercised shall not be
       disturbed.

Id. (emphasis added).

       The discretion to establish and enforce prison disciplinary policies is vested solely in the

Director of the Department of Corrections and the Chief Administrative Officer of each

correctional facility. "The legislature has granted prison administrators the authority to

promulgate rules, establish disciplinary procedures, and to provide a grievance process for

contesting disciplinary measures." Cooper v. State, 818 S.W.2d 653, 655 (Mo. App. 1991)

(citing §§ 217.175 and 217.370). Section 217.370 states: "The director shall establish rules and

regulations pertaining to offender disciplinary procedure and shall establish an offender

grievance procedure. The chief administrative officer of each correctional center shall observe

these rules and procedures at all times." § 217.370. In addition, section 217.175 provides that

"[t]he division directors shall make such rules, regulations and orders as are proper and necessary

for the management of the correctional centers and programs under their control."

       The reason for such discretion is succinctly explained in Ivy v. Moore, 31 F.3d 634, 635

(8th Cir. 1994): "The nature of prison disciplinary proceedings compels the courts to give wide

latitude to prison officials in the manner in which they conduct these proceedings for they take

place in a closed, tightly controlled environment peopled by those who have chosen to violate the

criminal law and who have been lawfully incarcerated for doing so." (Internal citations and

quotation marks omitted.) In Cooper v. Gammon, this Court noted that our Supreme Court has

"cautioned that the department of corrections [is] under the responsibility of the executive branch

of government, not the judicial branch, and 'that courts will not interfere with the conduct,

                                                 5
management, and disciplinary control of this type of institution except in extreme cases.'" 943

S.W.2d 699, 703 (Mo. App. 1997) (quoting McIntosh v. Haynes, 545 S.W.2d 647, 652-53 (Mo.

banc 1977)).

       The decision to place an inmate into administrative segregation is governed by section

217.375. Section 217.375.1 provides, in pertinent part:

       When an offender is an immediate security risk, . . . or an offender is in urgent
       need to be separated from others for his own safety or that of others, or for the
       security and good order of the correctional facility, the chief administrative officer
       of the correctional facility or his designee may immediately place the offender in
       an administrative segregation unit. . . .

According to the Respondents' motion to dismiss, Thomas was placed in administrative

segregation "as a disciplinary measure and for the safety and security of the institution," as is

permitted under section 217.375.1. As stated, Thomas was provided a hearing after which he

was found guilty of conspiring with others to attempt to introduce narcotics into the institution

and of arranging "financial transactions between family members and other offenders to assist in

funding illegal activities." The nature of his violation supports the Respondents' assertion that it

was necessary to segregate him for the "safety and security of the institution."

       Because section 536.150.1 prohibits our courts from infringing on the lawful exercise of

the discretion afforded Missouri's correctional officials, the circuit court did not err in dismissing

Thomas's claim that he is entitled to judicial review of his confinement in segregation.

       In any event, a decision must be final before it is deemed reviewable under section

536.150. See Dore & Assoc. Contracting, Inc. v. Mo. Dept. of Labor & Indus. Relations

Comm'n, 810 S.W.2d 72, 75 (Mo. App. 1990). "'Finality' is found when 'the agency arrives at a

terminal, complete resolution of the case before it.'" Id. at 75-76. "An order lacks finality in this

sense while it remains tentative, provisional, or contingent, subject to recall, revision or

                                                  6
reconsideration by the issuing agency." Id. at 76. The decision to detain an inmate in

administrative segregation is subject to repeated administrative review. Section 217.375.1

requires a review hearing to be held within five working days of the incident that resulted in

placement in administrative segregation. Section 217.375.2 mandates further periodic reviews of

the detention, requiring a review hearing "thirty days after the initial period of confinement and

every ninety days thereafter." Thomas does not allege that he has been denied any of the

required review hearings. Because the statutes mandate periodic review of an inmate's detention

in administrative segregation, the decision is not final; rather, it "remains tentative, provisional,

or contingent, subject to recall, revision or reconsideration." See Dore, 810 S.W.2d at 76. Given

the discretion afforded to prison officials concerning the placement of inmates in administrative

segregation, and the statutory requirement for periodic administrative review of the placement of

an inmate into administrative segregation, judicial review under section 536.150 is improper.

         In sum, a decision to retain an inmate in administrative segregation does not fall within

the purview of section 536.150 of the APA.6 Thus, the circuit court properly dismissed

Thomas's claim that he was entitled to judicial review under the APA. Point denied.7



         6
         Thomas cites Herron v. Kempker, 2003 WL 22478741 (Mo. App. W.D. 2003), to support his claim that
placement in administrative segregation is reviewable under the APA. Substantively, Herron's focus is on whether
an administrative segregation hearing is a contested or noncontested case under the APA. In 2004, section 217.375
was amended to provide that "[a] review hearing pursuant to this section is not a contested case." § 217.375.4.
Procedurally, Herron was ordered transferred to the Missouri Supreme Court and was dismissed as moot by Order
of the Court on May 25, 2004. Thus, Herron is of no assistance to Thomas.
         7
          Thomas does not allege that he was denied the periodic administrative review required by section
217.375.2, or that prison authorities failed to follow the rules and regulations governing such disciplinary
proceedings. Compare State ex rel. Haley v. Groose, 873 S.W.2d 221, 223-24 (Mo. banc 1994) (granting writ of
mandamus requiring prison officials to provide inmate with periodic administrative review required by section
217.375.2). Thomas's petition sought a declaration that one of the Department's disciplinary rules (which permits
the consideration of information from confidential sources without disclosing the identity of the informant to the
accused inmate) is invalid. He has not contended on appeal, however, that this claim justified judicial review of the
decision to place or maintain him in administrative segregation.

                                                          7
                                     Eighth Amendment Claim

       In his final three points, Thomas contends that the circuit court erred in dismissing his

Eighth Amendment claim based on (Point III) his failure to exhaust administrative remedies,

(Point IV) his failure "to allege personal involvement . . . of each defendant," and (Point V) the

failure of his requested remedies to redress the alleged harm from the conditions of his

confinement in segregation.

       In Gammon, this Court explained that confinement in a prison violates Eighth

Amendment rights to be free from cruel and unusual punishment: "if the conditions involve

wanton and unnecessary infliction of pain or are grossly disproportionate to the severity of the

crime warranting imprisonment," or if there are "[e]xtreme deprivations" that are objectively

"sufficiently serious" as to "result in the denial of 'the minimal civilized measure of life's

necessities.'" 943 S.W.2d at 703 (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981);

Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Gammon further states that in order to establish

an Eighth Amendment claim with regard to conditions of confinement, the plaintiff must "show a

culpable state of mind on the part of the prison officials" and "prove that the prison official acted

with deliberate indifference to the inmate's health or safety." Id.

       To withstand a motion to dismiss for failure to state a claim, a petition must contain

allegations of the ultimate facts necessary for recovery or allegations from which such ultimate

facts can be inferred. ITT Comm. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371,

379-80 (Mo. banc 1993) (citing Sofka v. Thal, 662 S.W.2d, 502, 509 (Mo. banc 1983)). The role

of pleadings in Missouri is to "identify facts upon which the plaintiff's claim rests." Id. at 380.

The petition must state allegations of fact in support of each essential element of the cause pled.

Kennedy v. Mo. Attorney Gen., 922 S.W.2d 68, 70 (Mo. App. 1996). If a petition consists only

                                                   8
of conclusions and does not contain ultimate facts or any allegations from which to infer those

facts, a motion to dismiss is properly granted. Id.

       Here, Thomas's sole reference to the conditions of his confinement was his cursory

allegation in his petition that while in segregation, "he was housed in filthy conditions, denied

showers and denied the minimum three (3) hour[s] out cell per week." This is the entirety of his

pleadings as to this claim. As noted, the burden is on Thomas to "identify facts upon which [his]

claim rests." See ITT, 854 S.W.2d at 380. Not only does Thomas fail to identify any such facts,

but he also fails to plead any facts about the personal involvement of any defendant. See

Gammon, 943 S.W.2d at 703. Finally, despite the allegations in his petition concerning the

conditions under which he was being held, the prayer of Thomas's petition requested only a

declaration that a rule relating to prison disciplinary proceedings was unlawful, and a finding that

the decision to place him in administrative segregation was accordingly invalid; the petition

sought no relief with respect to any of the conditions in which Thomas was being held. In these

circumstances, his Eighth Amendment claim "is a bare and conclusory statement without

sufficient factual information plead[ed] to support it." See Cooper v. Minor, 16 S.W.3d 578, 581

(Mo. banc 2000).

       Recently, in Williams v. Roper, the United States District Court for the Eastern District of

Missouri dismissed a plaintiff's Eighth Amendment claim regarding the conditions of his

confinement in administrative segregation on the basis that his allegations were "not pleaded

with enough specificity to state a claim." 2014 WL 2972472, *7 (E.D. Mo., July 1, 2014).

There, the court found that

       plaintiff has not been specific enough about the length of time he was allegedly
       subjected to an overflowed toilet or other "denials of life's necessities," such as
       when or how often he lacked a mattress or pillow or heat in his cell. Moreover,

                                                 9
       plaintiff has not discussed in his complaint a specific health problem that
       allegedly arose from such "denials," other than to generally state that he suffered
       "headaches, increased back pains, and insomnia, emotional distress, mental
       anguish and humiliation" at some point during the approximately eight months he
       was held in administrative segregation.

Id. The court concluded that "such generalized allegations simply cannot suffice to state a claim

for an Eighth Amendment violation for cruel and unusual punishment." Id.

       Unlike Missouri's "fact pleading" rules, the Federal Rules' system of "notice pleading"

requires only that the petition set forth a "short and plain statement of the claim." See ITT, 854

S.W.2d at 379 (quoting FED.R.CIV.P. 8(a)(2)). Consequently, under Missouri's rules, "motions

to dismiss for failure to state a claim have substantially more 'bite' . . . than they have under the

federal system." Id. If the allegations in Roper do not satisfy the notice-pleading requirements

of the federal court, Thomas's even more general allegations certainly do not satisfy Missouri's

fact-pleading requirements. Accordingly, the circuit court properly dismissed this claim.

       While the reasons set forth in this opinion differ to some extent from those advanced in

the motion to dismiss, we find that the circuit court reached the correct result. "Our primary

concern is the correctness of the result, not the route by which it is reached." See Cooper, 818

S.W.2d at 656. Because we conclude that the circuit court could properly have dismissed

Thomas's Eighth Amendment claim for the reasons stated herein, we need not, and will not,

address his specific Points related to this claim.

       Based on the foregoing, we affirm the circuit court's dismissal of Thomas's petition.



                                                          /s/ JAMES EDWARD WELSH
                                                          James Edward Welsh, Judge

All concur.


                                                     10
