ARUANNO v. STATE OF N.J.

Filing 43

LETTER OPINION. Signed by Judge William J. Martini on 8/20/09. (gh, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
M A R T I N L U T H E R K I N G JR . FE D E R A L B L D G . & U . S . C O U R T H O U S E 5 0 W A L N U T ST R E E T , P. O . B O X 419 N E W A R K , N J 07101-0419

[phone] WILLIAM J. MARTINI JUDGE

L E T T E R OPINION

A u g u s t 20, 2009 D a rre n M. Gelber W ile n tz , Goldman & Spitzer, PC 9 0 Woodbridge Center Drive P .O . Box 10 W o o d b rid g e , NJ 07095 (A tto rn e y for Plaintiff Joseph Aruanno) D a v id L. Dacosta O f f ic e of the New Jersey Attorney General D e p a rtm e n t of Law & Public Safety 2 5 Market Street P .O . Box 112 T re n to n , NJ 08625 (A tto rn e y for Defendants George W. Hayman, Jennifer Velez, and Anne E. Milgram)

R e:

A r u a n n o v. State of New Jersey C iv il Action No. 2:06-CV-00296 (WJM)

D e a r Counsel: T h is matter comes before the Court on Defendants George Hayman, Jennifer V e le z , and Anne Milgram's motion to dismiss. The Court did not hold oral argument. Fed. R. Civ. P. 78. For the following reasons, Defendants' motion to dismiss is GRANTED. B A C K G R O U N D AND PROCEDURAL HISTORY P la in tif f Joseph Aruanno has been convicted of two sex offenses involving c h ild re n . On April 16, 2004, the State filed a petition in the Superior Court of New

Jersey, Law Division, Essex County, to civilly commit Aruanno under the New Jersey S e x u a lly Violent Predators Act ("SVPA"), N.J.S.A. 30:4-27.24 et seq. The court issued a te m p o ra ry commitment order and assigned Aruanno counsel. Thereafter, on May 9, 2 0 0 5 , the court held a final commitment hearing, resulting in Aruanno's commitment to a S p e c ia l Treatment Unit ("STU") in Kearny, New Jersey. A ru a n n o unsuccessfully appealed this decision to the New Jersey Appellate D iv is io n . On January 20, 2006, he filed a pro se complaint in this district alleging v io la tio n s of his due process and equal protection rights under 42 U.S.C. § 1983. The C o u rt dismissed Aruanno's complaint, on February 2, 2006, finding that he failed to e x h a u s t his state court remedies. Aruanno's civil commitment had not been overturned or in v a lid a te d by a state court or called into question by the issuance of a writ of habeas c o rp u s . On appeal, the Third Circuit vacated and remanded this matter, holding that A ru a n n o presented a cognizable claim under § 1983, since he only sought a new civil c o m m itm e n t hearing and not immediate release or a shorter commitment period. F o llo w in g remand, the Court again dismissed Aruanno's complaint, this time for la c k of jurisdiction. The Court determined that the Eleventh Amendment barred the § 1 9 8 3 suit because Aruanno brought the complaint against the State of New Jersey and not in d iv id u a ls named in their official capacities. Aruanno then filed an amended complaint, o n January 28, 2009, which substituted three named state officials as Defendants. A ru a n n o 's one count amended complaint alleges that Defendants violated his c o n s titu tio n a l rights under § 1983. Aruanno principally challenges the SVPA on due p ro c e s s and equal protection grounds, while also charging that the SVPA is punitive and th u s violative of the Double Jeopardy and Ex Post Facto Clauses. In addition, he m a in ta in s that Defendants infringed on his Fifth Amendment right against self in c rim in a tio n by relying on clinical evidence based, in part, on inculpatory statements. O n April 9, 2009, Defendants filed a motion to dismiss for lack of jurisdiction and f a ilu re to state a claim, under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The motion is ready f o r disposition. S T A N D A R D OF REVIEW W h e n evaluating a motion to dismiss for failure to state a claim, a court may c o n s id e r only the complaint, exhibits attached to the complaint, matters of public record, a n d undisputedly authentic documents if the plaintiff's claims are based upon those d o c u m e n ts . See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1 1 9 6 (3d Cir. 1993). All allegations in the complaint must be taken as true and viewed in th e light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); T r u m p Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 2

1998). This assumption of truth is inapplicable, however, to legal conclusions couched as f a c tu a l allegations or to "[t]hreadbare recitals of the elements of a cause of action, s u p p o rte d by mere conclusory statements." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2 0 0 9 ). A lth o u g h a complaint need not contain detailed factual allegations, "a plaintiff's o b lig a tio n to provide the `grounds' of his `entitlement to relief' requires more than labels a n d conclusions, and a formulaic recitation of the elements of a cause of action will not d o ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Thus, f a c tu a l allegations must be sufficient to raise a plaintiff's right to relief above a s p e c u la tiv e level, such that it is "plausible on its face." See id. at 570; see also Umland v. P L A N C O Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). Furthermore, a claim has " f a c ia l plausibility when the plaintiff pleads factual content that allows the court to draw th e reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 1 2 9 S. Ct. at 1949 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility s ta n d a rd is not akin to a `probability requirement'. . . it asks for more than a sheer p o s s ib ility . . . . ." Iqbal, 129 S. Ct. at 1949 (2009). D IS C U SS IO N A. P r o c e d u r a l Issues

D e f e n d a n ts first move to dismiss Plaintiffs' amended complaint, under Fed. R. C iv . P. 12(b)(1), as time barred. Specifically, Defendants contend that the amended c o m p la in t fails to relate back to the original complaint, under Fed. R. Civ. P. 15(c), and th u s falls outside the applicable two-year statute of limitations for § 1983 actions. See O 'C o n n o r v. City of Newark, 440 F.3d 125, 126-27 (3d Cir. 2006) (noting that § 1983 a c tio n s have a two-year statute of limitations where the cause of action accrues in New J e r s e y) . R u le 15(c) states, in pertinent part, that "[a]n amended complaint relates back to th e original pleading when . . . the amendment asserts a claim or defense that arose out of th e conduct, transaction, or occurrence set out-or attempted to be set out-in the original p le a d in g ." Fed. R. Civ. P. 15(c)(1). An amendment relates back when it "restate[s] the o rig in a l claim with greater particularity or amplif[ies] the factual circumstances s u rro u n d in g the pertinent conduct, transaction or occurrence in the preceding pleading" B e n s e l v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir. 2004). It does not relate back " w h e n it asserts a new ground for relief supported by facts that differ in both time and typ e from those the original pleading set forth." Smith v. Rubin & Raine of New Jersey, L L C , Civ. No. 08-5724, 2009 WL 2143644, at *2 (D.N.J. July 14, 2009).

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In the instant matter, the amended complaint relates back to the original filing. The complaint challenges the constitutionality of the SVPA and alleges infringement of d u e process and equal protection rights stemming from Aruanno's temporary and final c iv il commitment proceedings. The amended complaint elaborates on these claims, while a ls o asserting that Defendants violated the Double Jeopardy and Ex Post Facto Clauses, a s well as Aruanno's Fifth Amendment right against self-incrimination. Both complaints a rise out of the same conduct, transaction, or occurrence, namely Aruanno's temporary a n d civil commitment hearings. Since Aruanno filed the original complaint on January 2 0 , 2006, within two-years of the temporary and final commitment hearings, the amended c o m p la in t is not time barred and will not be dismissed on this basis. See Garvin v. City of P h ila d e lp h ia , 354 F.3d 215, 220 (3d Cir. 2003) (stating that if the amendment relates b a c k to the original filing, the amended complaint is treated, for statute of limitations p u rp o s e s , as if it had been filed at that time). B. S e c tio n 1983 Claim

D e f e n d a n ts also seek dismissal, under Fed. R. Civ. P. 12(b)(6), for Aruanno's f a ilu re to state a § 1983 claim. To recover under § 1983, a plaintiff must show that: (1) a p e rs o n deprived him or caused him to be deprived of a right secured by the Constitution o r laws of the United States, and (2) the deprivation was done under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Sample v. Diecks, 885 F.2d 1099, 1107 (3d C ir. 1989). As alleged, there is no question that Defendants acted under the color of state la w . The only issue concerns whether Defendants deprived Aruanno of his constitutional rig h ts by civilly committing him under the SVPA. 1. P ro c e d u r a l Framework for the SVPA

T h e SVPA provides for the civil commit of individuals convicted of a sexually v io le n t offense that qualify as sexually violent predators. N.J.S.A. 30:4-27.26. The S V P A defines a sexually violent predator ("SVP") as a: p e rs o n who has been convicted, adjudicated delinquent or found not guilty by re a s o n of insanity for commission of a sexually violent offense, or has been c h a rg e d with a sexually violent offense but found to be incompetent to stand tria l, and suffers from a mental abnormality or personality disorder that makes th e person likely to engage in acts of sexual violence if not confined in a s e c u re facility for control, care and treatment. N .J .S .A . 30:4-27.26(b). When it appears that a person may meet the criteria of a SVP, an " a g e n c y with jurisdiction," such as the New Jersey Department of Corrections, provides n o tic e to the New Jersey Attorney General at least ninety days before the anticipated re le a s e of this individual. N.J.S.A. 30:4-27.26, 30:4-27.27(a)(1). If the Attorney General 4

concludes that public safety warrants involuntary civil commitment, a petition for c o m m itm e n t is initiated, supported by two clinical certifications. N.J.S.A. 30:4-27.26; 3 0 :4 - 2 7 .2 8 . U p o n receipt of these documents, the court conducts a temporary commitment h e a rin g . N.J.S.A. 30:4-27.28(f). At this hearing, the court examines the supporting c e rtif ic a tio n s and determines whether probable cause exists to believe that the individual q u a lif ie s as a SVP. Id. If the court finds probable cause, it issues an order authorizing te m p o ra ry commitment. Id. F o llo w in g the initial hearing, the court appoints counsel, if necessary, and holds a f in a l commitment hearing within twenty days. N.J.S.A. 30:4-27-29. At the final hearing, th e court hears various evidence, including testimony related to the clinical basis for in v o lu n ta ry commitment from a psychiatrist on the individual's treatment team. N.J.S.A. 3 0 :4 -2 7 .3 0 (b ). If the court determines by clear and convincing evidence that the in d iv id u a l qualifies as a SVP, the court issues an order of involuntary commitment. N.J.S.A. 30:4-27.32(a). O n c e committed, the SVP has several avenues to challenge his or her civil c o m m itm e n t. In addition to a statutorily provided annual review hearing, the SVP may b rin g his or her own petition questioning the commitment. N.J.S.A. 30:4-27.35, 30:42 7 .3 6 . The New Jersey Department of Health and Human Services­the agency that p ro v id e s SVP with medical treatment­may also recommend termination of commitment. N.J.S.A. 30:4-27.36. 2. T e m p o r a ry Commitment Hearing

In the amended complaint, Aruanno first argues that Defendants violated his due p ro c e s s rights under the Fourteenth Amendment by virtue of his temporary civil c o m m itm e n t under the SVPA "without notice . . . or an opportunity to be heard." (Amend. Compl. ¶¶ 13-14.) However, the New Jersey Appellate Division has c o n s is te n tly held, with one narrow exception, that due process does not require an e v id e n tia ry hearing prior to temporary commitment under the SVPA. See, e.g., In re C o m m itm e n ts of M.G. & D.C., 331 N.J. Super. 365, 383-86 (App. Div. 2000). This e x c e p tio n only applies when the State seeks to civilly commit an individual who is either p re s e n tly incarcerated or resident in a state facility and qualifies for Conditional E x te n s io n Pending Placement ("CEPP").1 Id. at 370.

CEPP status designates individuals who are legally entitled to leave a mental hospital because they are not considered dangerous, but remain confined because they "are incapable of competently exercising" the right to be discharged because of a diminished capacity to survive in the outside world. 5

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Even when viewed in a favorable light, the amended complaint fails to allege that A ru a n n o qualified for CEPP status at the time of the temporary commitment hearing. Aruanno therefore lacked the right to receive either notice or a hearing prior to his te m p o ra ry commitment. As such, Aruanno § 1983 claim on this basis will be dismissed. 3. S e lf-In c r im in a tin g Evidence

A ru a n n o next asserts that Defendants infringed his Fifth Amendment right against s e lf incrimination. He alleges that Defendants' petition for civil commitment was s u p p o rte d by clinical certifications and medical testimony from his treatment team that in c o rp o ra te d , in part, unpermissive inculpatory statements. (Amend Compl. ¶ 15.) T h e Self-Incrimination Clause provides that no person "shall be compelled in any c rim in a l case to be a witness against himself." The privilege protects against "real" d a n g e rs of convictions, not remote and speculative possibilities. Zicarelli v. N.J. State C o m m 'n of Investigation, 406 U.S. 472, 278 (1972). As applied to facts at hand, the SVPA undoubtably qualifies as a civil statute. The s ta tu te 's language states an intent to be a "civil procedure for the involuntary commitment o f sexually violent predators" and the New Jersey Supreme Court has repeatedly held that th e SVPA is civil and non-punitive in nature. See N.J.S.A. 30:4-27.24; see, e.g., In re C o m m itm e n t of W.Z., 173 N.J. 109, 119-21 (2002). Even if the clinical certifications and m e d ic a l testimony relied on inculpatory statements, Aruanno faced, at most, civil and not c rim in a l penalties. A s su m in g arguendo that the SVPA qualified as a criminal statute, Aruanno still d id not face a "real" possibility of future prosecution by discussing his prior convictions w ith various medical workers employed by Defendants. Aruanno had already admitted re s p o n s ib ility and served time in prison for these convictions thereby triggering double je o p a rd y protections. See Fournier v. Corzine, Civ. No. 07-1212, 2007 WL 2159584, at * 1 6 (D.N.J. July 26, 2007). Since Aruanno exhausted his direct appeal with regards to his

See Matter of S.L., 94 N.J. 128, 139-40 (1983). 6

second sexual offense, he also deprived himself of this Fifth Amendment privilege.2 See L e w is v. Dep't of Corrs., 365 N.J. Super. 503, 507 (App. Div. 2004). M o re o v e r, to the extent Aruanno challenges the psychiatric examinations on due p ro c e s s grounds, the SVPA provides ample procedural safeguards to challenge the c lin ic a l certifications and the treatment team's medical testimony at the final commitment h e a rin g . Under the statute, the alleged SVP and his or her counsel receive copies of the c lin ic a l certifications and supporting documents at least ten days prior to the final c o m m itm e n t hearing. N.J.S.A. 30:4-27.30(a). At the hearing, the alleged SVP possesses th e right to present evidence and cross-examine witnesses. N.J.S.A. 30:4-27.31. As a lle g e d , Aruanno fails to establish a deprivation of his due process and self-incrimination rig h ts . Accordingly, Aruanno cannot state a § 1983 claim on this ground. 4. S ta n d a r d of Proof and Right to a Jury Trial

A ru a n n o maintains two additional due process claims. First, he challenges the S V P A 's evidentiary standard of clear and convincing evidence and asserts that his due p ro c e s s rights have been violated by Defendants' failure to establish that he qualified as a S V P by proof beyond a reasonable doubt. (Amend. Compl. ¶¶ 19-20). Second, he c o n te n d s that he was entitled to a jury trial. (Id. ¶ 21.) W ith regards to the evidentiary issue, the SVPA explicitly provides for the clear a n d convincing evidence standard. N.J.S.A. 30:4-27.32(a). As recently explained by the N e w Jersey Supreme Court in In re Commitment of J.M.B., 197 N.J. 563, 578 (2009), the S V P A "involve[s] findings of guilt beyond a reasonable doubt because that is the s ta n d a rd for a criminal conviction. Once a conviction occurs, the beyond a reasonable d o u b t standard drops out of the case. It is then that the SVPA itself becomes operative." As for the jury trial, the Appellate Division has consistently held that individuals lack a rig h t to a jury trial in SVPA civil commitment hearings. See, e.g., In re Commitment of J .H .M ., 367 N.J. Super. 599, 606-08 (App. Div. 2003), cert. denied, 179 N.J. 312 (2004); In re Commitment of G.G.N., 372 N.J. Super. 42, 46 (App. Div. 2004). In light of plain la n g u a g e of the statute and New Jersey precedent, Aruanno does not state a § 1983 claim o n these grounds.

Even if Aruanno had not exhausted his direct appeals, the Court notes that, under N.J.S.A. 30:4-82.4(h)(2), New Jersey explicitly bars the disclosure of information related to an inmate's commitment or release collected for purposes of determining the need for involuntary commitment. The well-established "use immunity" concept restricts the future use of inculpatory statements made during psychiatric examinations, rendering Aruanno's self-incrimination concerns even more remote and speculative. See State v. Whitlow, 45 N.J. 3, 26 (1965); In re Commitment of G.A., 309 N.J. Super. 152, 162-63 (App. Div. 1998). 7

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5.

D o u b le Jeopardy and Ex Post Facto Challenges

T h e amended complaint further challenges the SVPA under the Double Jeopardy a n d Ex Post Facto Clauses. The amended complaint states that Aruanno faces "a lifetime o f involuntary confinement," under the SVPA, which constitutes punishment. (Amend. C o m p l. ¶ 17.) Such punishment violates the Double Jeopardy and Ex Post Facto Clauses, s in c e he has already served time in prison for his criminal acts. In Kansas v. Hendricks, 521 U.S. 346 (1997), the United States Supreme Court h e ld that the Double Jeopardy and Ex Post Facto Clauses apply only to criminal statutes w h e re punishment is imposed. As discussed above, the SVPA qualifies as a civil statute, p re c lu d in g Aruanno's constitutional challenge. 6. In e ffe c tiv e Assistance of Counsel

F in a lly, Aruanno claims that the "final hearing was conduced without proper legal re p re se n ta tio n " and demands to be provided with the "adequate assistance of counsel" if th e Court grants a new civil commitment hearing. (Amend. Compl. ¶¶ 18, 21.) To the e x te n t Aruanno seeks to assert constitutional claims under § 1983 against his public d e f e n d e rs, his claim must be dismissed. "[A] lawyer representing a client is not, by virtue o f being an officer of the court, a state actor `under color of state law' within the meaning o f § 1983." Polk County v. Dodson, 454 U.S. 312, 318 (1981). C O N C L U S IO N F o r the above stated reasons, Defendants' motion to dismiss is GRANTED. An a p p ro p ria te Order accompanies this Letter Opinion.

s /W illia m J. Martini William J. Martini, U.S.D.J.

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