ARUANNO v. CALDWELL et al

Filing 9

OPINION. Signed by Judge William J. Martini on 6/8/11. (dc, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPH ARUANNO,
Plaintiff,
v.
OFFICER CALDWELL, et al.,
Defendants.

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Civil No. 09-5652 (WJM)

OPINION

APPEARANCES:
JOSEPH ARUANNO, #363
Special Treatment Unit- Annex
P.O. Box #CN905
Avenel, NJ 07001
MARTINI, District Judge:
Joseph Aruanno, who is civilly committed under the New Jersey Sexually Violent
Predator Act, filed a Complaint without prepayment of the filing fee. See 28 U.S.C. § 1915(a).
This Court dismissed the Complaint for failure to state a claim upon which relief may be granted,
without prejudice to the filing of an amended complaint stating a cognizable claim under 42
U.S.C. § 1983 against at least one named defendant. On June 7, 2010, Plaintiff filed an
Amended Complaint. Having thoroughly reviewed Plaintiff’s allegations in the Amended
Complaint, this Court will dismiss the Amended Complaint for failure to state a claim upon
which relief may be granted as against defendants Merrill Main, George Hayman, and Jennifer
Velez, and allow the § 1983 excessive force claim to proceed against defendant Officer Caldwell.

I. BACKGROUND
Plaintiff has been civilly committed as a sexually violent predator since 2004. As
explained in 2010 by the Third Circuit Court of Appeals,
[i]n 1994, while in Florida, he exposed himself to two adolescent
girls as they were walking home from school and engaged in lewd
conduct in their presence. As a result of this incident, Aruanno
pled guilty to second-degree lewd conduct, and was sentenced to
ten years’ probation. Just two years later, in 1996, Aruanno
sexually molested an eight-year-old girl who had been playing on
the front steps of her house in Wildwood, New Jersey. A jury
convicted Aruanno of second-degree sexual assault, and he was
sentenced to ten years in prison, and disqualification from parole
for five years. The Appellate Division of the New Jersey Superior
Court affirmed the conviction and sentence. The New Jersey
Supreme Court denied certification. State v. Aruanno, 793 A. 2d
716 (N.J. 2002) (table op.).
In April 2004, while Aruanno was still serving his prison sentence,
the State of New Jersey . . . filed a petition to involuntarily commit
Aruanno pursuant to the New Jersey Sexually Violent Predator Act
(“SVPA), N.J.S.A. § 30:4-27.24 et seq. . . . .
At the commitment hearing, the State presented the testimony of
Dr. Vivian Shnaidman . . . . Dr. Shnaidman testified that Aruanno
was a chronic paranoid schizophrenic, but her diagnosis explicitly
ruled out diagnoses of exhibitionism and pedophilia. Nevertheless,
Dr. Shnaidman opined that Aruanno’s schizophrenia, when
combined with his previous violent conduct, created a “very high”
risk of future violence. In particular, because Aruanno refused to
take psychotropic medication to treat his schizophrenia, he would
continue to suffer from psychotic delusions which would render
sex offender treatment useless. According to Dr. Shnaidman,
Aruanno would have serious difficulty controlling his sexually
predatory behavior without undergoing treatment for his
schizophrenia . . . .
Aruanno testified on his own behalf at the hearing. He denied
committing either the Florida or the New Jersey offense, and
testified that he believed the State had filed the commitment

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petition in retribution for his decision to go to trial for the New
Jersey offense, rather than accepting a deal to plead guilty . . . .
The state court found that Aruanno suffered from a mental
abnormality which created “substantial, significant, severe
difficulty controlling his sexually violent behavior,” and granted
the State’s petition for involuntary commitment. Aruanno
appealed the order, and the Appellate Division affirmed. In re
Civil Commitment of J.A., 2007 WL 609284 (N.J. Super. Ct. App.
Div. 2007).
Aruanno v. Hayman, C.A. No. 09-3499 slip op., pp. 2-4 (3d Cir. May 27, 2010).
In 2009, the Appellate Division of the New Jersey Superior Court reversed the Law
Division’s May 3, 2007, order denying post-conviction relief on the New Jersey conviction,
vacated the conviction, and remanded the case.1 See State v. Aruanno, 2009 WL 1046033 (N.J.
Super. Ct. App. Div. April 21, 2009), certif. denied, 199 N.J. 543 (2009) (table).
Since being detained in New Jersey, Mr. Aruanno has filed over 28 civil cases in this
Court, and 27 appeals in the United States Court of Appeals for the Third Circuit.
The original Complaint in this case (Docket Entry #1) named the following defendants:
Officer Caldwell, Dr. Merrill Main, Commissioners George Hayman and Jennifer Velez, and 20
John and Jane Does. Plaintiff asserted the following in the section of the form complaint
instructing him to state the facts of his case:
Despite numerous federal cases such as #01-789; #04-3066; #071212; #08-305; etc; the defendants have been permitted to continue
to engage in such brutal and sadistic retaliation with impunity
without any concern for requested injunctive relief in these cases,
though counsel has made many promises to obtain the restraining
orders we request but has been one big lie, where on 9-17-09

1

This Court was not able to determine through online research the outcome of the

remand.
3

defendant Caldwell entered my cell and attacked me for
“snitching” as he called my litigation.
And which includes having hearings recently in front of Superior
Court Judges John Kennedy and Philip Freedman about issue in
#08-305 where after the concern of violence was raised the
defendants were warned that, “the hearings are confidential, etc.,”
but despite that the defendants immediately retaliated again[st]
plaintiff, other residents and staff members who also testified about
the crimes being committed here.
And which is to the degree of being condoned by all involved in
the cases listed above in the federal courts since they had been
made aware of this problem over eight years ago and refuse to act,
or comply, making them failed cases and which has le[]d to all
cases after #01-789.
As to Dr. Merrill Main he placed me on M.A.P. penalty status
before any hearings or the ability to contact any lawyers. And
before a finding of guilt by a jury since “false” criminal complaints
were submitted against me to the prosecutor.
And which includes being locked in solitary confinement without
sending or receiving mail; withholding my typewriter also to
obstruct legal access here; throwing legal documents and mail in
the trash; denying any medical attention or even a shower;
continued threats to my life; continued denial of access to courts,
lawyers, etc., which complies with due process of being adequate;
have stated I must confess in writing before violations stop;
etc....All in violation of the 4th, 5th, 6th, 8th, 14th, amendments of
the U.S. Constitution.
(Docket entry #1 at p. 7.)2
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This Court’s docket shows that on March 29, 2010, in Alves v. Ferguson, Civil No. 010789 (DMC) opinion (D.N.J. Mar. 29, 2010), a civil action concerning the conditions of
confinement, Judge Cavanaugh denied the motion for injunctive relief filed by at least 28 civilly
committed sexually violent predators who sought to enjoin the State from transferring them from
the Special Treatment Unit in Hudson County to another facility. The other three cases to which
Plaintiff refers are closed. Bagarozy v. Harris, Civil No. 04-3066 (JAP), and Hasher v. Corzine,
07-1212 (DMC), were consolidated with Civil No. 01-0789 and closed on January 4, 2008, and
January 13, 2009, respectively. On April 23, 2010, Judge Linares dismissed the complaint in
(continued...)
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Plaintiff further asserted that Caldwell, a Department of Corrections Officer at the
Northern Regional Unit, violated his rights when “On 9-17-09 Officer Caldwell entered my cell
for the purpose of attacking me which resulted in serious injury. All in retaliation for my
litigation, or “snitching” as he called it.” (Docket entry #1 at p. 4.) Plaintiff alleged that Main
violated his constitutional rights as follows: “Despite having been warned about abuse and
threats Merrill Main allows them to continue [and] placed me on penalty status before
investigation is complete, without my typewriter which only serves to obstruct justice, which
results in due process violations, etc....” (Id. at p. 5.) Plaintiff sought the following relief:
Before defendants finally do kill me as they state, before they are
able to attack me one more time, I ask that the District Court
finally act here and order some form of protection including a
temporary restraining order or whatever the court feels is best.
And which includes restoring legal access such as typewriter; mail;
etc....Also, $10,000,000.00 in punitive damages.
(Docket entry #1 at p. 8.)
In an Opinion filed May 6, 2010, this Court dismissed the Complaint for failure to state a
claim upon which relief may be granted as follows:
Plaintiff, a civilly committed sexually violent predator,
brings this Complaint under § 1983 against Officer Caldwell, Dr.
Merrill Main, then Department of Corrections Commissioner
George Hayman, then Department of Human Services
Commissioner Jennifer Velez, and several John and Jane Does.
Aside from listing Hayman and Velez in the caption, nowhere in
Plaintiff’s submissions does Plaintiff even mention these
defendants by name or show how they were involved in any
2

(...continued)
Aruanno v. Booker, Civ. No. 08-0305 (JLL) opinion (D.N.J. Apr. 23, 2010), due to Mr.
Aruanno’s refusal to comply with discovery. On October 14, 2010, the Third Circuit affirmed,
finding that “[t]he record supports the District Court’s finding that Aruanno’s failure to cooperate
with discovery was willful.” Aruanno v. Booker, 397 Fed. App’x 756, 758 (3d Cir. 2010).
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allegedly unconstitutional conduct. Instead, using the passive
voice, Plaintiff makes conclusory statements about being “attacked
(without describing what force was used, or providing any factual
allegations or context),” being the subject of “brutal and sadistic
retaliation” (without any factual elaboration), and “being locked in
solitary confinement” (for an unspecified period of time).3
However, these “bare assertions . . . amount to nothing more than a
formulaic recitation of the elements of a constitutional . . . claim,
[and a]s such [are] not entitled to be assumed true.” Iqbal, 129 S.
Ct. at 1951 (citations and internal quotation marks omitted).
“Because vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official’s own actions, has violated the Constitution.”
Iqbal, 129 S. Ct. at 1948. Because the Complaint makes no nonconclusory factual allegations regarding Hayman and Velez, and
vicarious liability does not apply under § 1983, this Court will
dismiss the claims against Hayman and Velez for failure to state a
claim upon which relief may be granted.
Although the body of the Complaint mentions Officer Caldwell
and Dr. Merrill Main by name, the additional factual assertions
against these defendants are conclusory or too cryptic to “nudge”
Plaintiff’s claims of retaliation and denial of access to courts
“across the line from conceivable to plausible,” as required by the
Iqbal standard. Iqbal, 129 S. Ct. at 1951. “[T]he pleading standard
Rule 8 announces does not require detailed factual allegations, but
it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation . . . . Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.”
Iqbal, 129 S. Ct. at 1949 (citations and internal quotation marks
omitted).
In this Complaint, Plaintiff alleges that Dr. Main placed him in
solitary confinement (for an unspecified period of time), where
Plaintiff had no access to mail, a typewriter, or a shower. Plaintiff
further asserts that, “despite having been warned about abuse and
threats Merrill Main allows them to continue.” (Docket entry #1 at
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To state a First Amendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must
assert facts showing that “”1) the conduct in which he was engaged was constitutionally
protected; 2) he suffered ‘adverse action’ at the hands of . . . officials; and 3) his constitutionally
protected conduct was a substantial or motivating factor in the decision to [take adverse action].”
Carter v. McGrady, 292 F. 3d 152, 158 (3d Cir. 2002) (citation omitted).
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p. 5.) To establish deliberate indifference, a plaintiff must “show[]
that the official was subjectively aware of the risk” and failed to
reasonably respond. Farmer v. Brennan, 511 U.S. 825, 829 (1994).
Placement of a civilly committed sexually violent predator in
segregated confinement does not violate due process unless the
deprivation of liberty is in some way extreme. See Deavers v.
Santiago, 243 Fed. App’x 719, 721 (3d Cir. 2007) (applying
Sandin v. Conner, 515 U.S. 472 (1995), to segregated confinement
of civilly committed sexually violent predators). And to establish
standing for an access to courts claim, plaintiffs must assert “(1)
that they suffered an actual injury - that they lost a chance to pursue
a nonfrivolous or arguable underlying claim; and (2) that they have
no other remedy that may be awarded as recompense for the lost
claim other than in the present denial of access suit.” Monroe v.
Beard, 536 F. 3d 198, 205 (3d Cir. 2008) (quoting Christopher v.
Harbury, 536 U.S. 403, 415 (2002)) (internal quotation marks
omitted).
The allegations regarding Main are precisely the sort of pleading
the Supreme Court disregarded in Iqbal. Iqbal pleaded that the
named defendants “‘knew of, condoned, and willfully and
maliciously agreed to subject [him]’ to harsh conditions of
confinement ‘as a matter of policy, solely on account of [his]
religion, race, and/or national origin and for no legitimate
penological interest.’” Iqbal, 129 S. Ct. at 1951. The Court held
that these “bare assertions . . . amount to nothing more than a
formulaic recitation of the elements of a constitutional
discrimination claim, [and a]s such, the allegations are conclusory
and not entitled to be assumed true.” Iqbal, 129 S. Ct. at 1951
(citations and internal quotation marks omitted). Because
Plaintiff’s allegations that Main allowed unspecified “abuse” to
continue and placed Plaintiff in segregated confinement for an
unspecified period of time are conclusory, these bare allegations
are not entitled to the assumption of truth and the Complaint fails
to state a claim for relief under § 1983 against Dr. Main.
Plaintiff pleads that on September 17, 2009, defendant Caldwell
“entered [his] cell and attacked [him] for ‘snitching’ as he called
[Plaintiff’s] litigation,” which resulted in “serious injury.”
(Docket entry #1 at pp. 4, 6.) Plaintiff provides no elaboration.
Under Iqbal, the unadorned allegations that Caldwell “attacked”
Plaintiff and that this resulted in “serious injury” are “no more than
conclusions [which] are not entitled to the assumption of truth.”
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Iqbal at 1950. As Plaintiff makes no non-conclusory factual
allegations regarding what Caldwell did or failed to do that
violated Plaintiff’s rights under § 1983, the claim against Caldwell
will be dismissed for failure to state a claim upon which relief may
be granted.
(Docket Entry #3, pp. 7-10.)
This Court granted Plaintiff leave to correct the deficiencies in the Complaint, and on
June 7, 2010, Plaintiff filed a 1.5-page Amended Complaint. (Docket Entry #6.) In the
Amended Complaint, Plaintiff states:
As to the incident defendant Caldwell has just questioned JA about
recent incidents involving his complaints about the Dept. of
Corrections (DOC) then left his cell only to return minutes later
and attacked JA by punching and kicking him in the head while
yelling “I AM GOING TO KILL YOU SNITCH,” etc., which then
continued in the dayroom when JA managed to run for help where
while he lay on the floor being continuously punched many other
residents who witnessed the attack immediately called the Office of
the Public Advocate whom immediately came to see JA.
The first staff member JA confronted was Officer Cruz where JA
asked him to “call a code” where he refused only to assist
defendant Caldwell first yelling “KICK HIS ASS,” then kicking
him while he lay on the floor. Only to then call a code AFTER
they were done beating JA . . .
All named defendants, and other John Does, had been warned
personally about threats of retaliation and certain types of
retaliation such as assaults, including by Superior Court Judge
Philip Freedman, properly placing them as defendants.
Then they lied by stating JA attacked them which is why they have
placed him in lock-up, where he remains today, which makes it
“EXTREME” . . . . [T]he defendants attacked JA, wrongfully
searched and seized, or placed in lock-up, conspired to conceal and
filed false charges against JA contrary to the 4th, 8th & 14th
Amendments . . .
(Docket Entry #6, pp. 1-2.)
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II. STANDARD OF REVIEW
The Prison Litigation Reform Act (?PLRA”), Pub. L. No. 104-134, §§ 801-810, 110 Stat.
1321-66 to 1321-77 (April 26, 1996), requires a District Court to screen a complaint in a civil
action in which a plaintiff is proceeding in forma pauperis and to sua sponte dismiss any claim if
the Court determines that it is frivolous, malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B).
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), hammered the “final nail-in-the-coffin” for the
“no set of facts” standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),4 which was
previously applied to determine if a federal complaint stated a claim. See Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009). The pleading standard under Rule 8 was refined by the
United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 129 S. Ct. 1937 (2009), where the Supreme Court clarified as follows:
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice . . . . Rule 8 marks a
notable and generous departure from the hyper-technical, codepleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience
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The Conley court held that a district court was permitted to dismiss a complaint for
failure to state a claim only if “it appear[ed] beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. at
45-46.
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and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not “show[n]”“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Iqbal, 129 S. Ct. at 1949 -1950 (citations omitted).
Since Iqbal, the Third Circuit has required district courts to conduct a three-part analysis
when reviewing a complaint for dismissal for failure to state a claim:
To determine the sufficiency of a complaint under the [Iqbal]
pleading regime . . . , a court must take three steps: First, the court
must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should
identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
1950. Finally, “where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Id.
Santiago v. Warminster Tp., 629 F. 3d 121, 130 (3d Cir. 2010) (footnote omitted).
The Court is mindful that the sufficiency of this pro se pleading must be construed
liberally in favor of the plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007).
III. DISCUSSION
A court’s initial task is to “tak[e] note of the elements [Plaintiff] must plead” in order to
state a claim of liability under 42 U.S.C. § 1983. See Iqbal, 129 S Ct. at 1947-48. Section 1983
provides in relevant part:
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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . . 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, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
To recover under 42 U.S.C. § 1983, a plaintiff must show two elements: (1) a person
deprived him or caused him to be deprived of a right secured by the Constitution or 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).
To recover on a claim of excessive force, a plaintiff must show that his treatment
amounted to an “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
320-21 (1986).5 Whether the use of force rises to such a level is determined by “whether the
force was applied in a good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992)
(quoting Whitley, 475 U.S. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir.1973))). In resolving this question, a court must evaluate “(1) the need for the application of
force; (2) the relationship between the need and the amount of force that was used; (3) the extent
of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of the facts known to them; and (5) any efforts
5

Because Plaintiff is civilly committed, his claim arises under the Due Process Clause of
the Fourteenth Amendment. See Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). However,
Eighth Amendment standards are applicable to his claim. See Rivera v. Marcoantonio, 153 Fed.
App’x 857, 859 n. 1 (3d Cir. 2005); Inmates of Allegheny County Jail v. Pierce, 612 F. 2d 754,
762 (3d Cir. 1979).
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made to temper the severity of a forceful response.” Giles v. Kearney, 571 F.3d 318, 328 (3d Cir.
2009). “Force that exceeds that which is reasonable and necessary under the circumstances is
actionable.” Id.
Plaintiff asserts in the Amended Complaint that on September 17, 2009,6 after
questioning Plaintiff about Plaintiff’s recent complaints of other incidents, defendant Officer
Caldwell “attacked JA by punching and kicking him in the head while yelling ‘I AM GOING TO
KILL YOU SNITCH,’ etc., which then continued in the dayroom when JA managed to run for
help where while he lay on the floor being continuously punched . . .” (Docket Entry #6, p. 1.)
Given that, on the facts alleged by Plaintiff, the punching and kicking by Caldwell was
unprovoked, this Court finds that Plaintiff’s Amended Complaint adequately asserts facts stating
a § 1983 excessive force claim against defendant Caldwell, and will allow this claim to proceed.
Plaintiff also sues Dr. Merrill Main and former Commissioners Hayman and Velez,
presumably for failure to protect. To state a failure to protect claim, a plaintiff must assert facts
showing that he faces “a substantial risk of serious harm,” Farmer v. Brennan, 511 U.S. 825, 834
(1994), and that the named defendant in fact “knows of and disregards an excessive risk to
inmate health or safety,” id. at 837. “[A]n official’s failure to alleviate a significant risk that he
should have perceived but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.” Id. at 838.
The Amended Complaint fails to assert facts showing that these supervisory and
administrative defendants knew that Plaintiff faced an excessive risk of being punched and

6

Plaintiff does not provide a date in the Amended Complaint, but the original Complaint
states that Caldwell attacked Plaintiff in his cell on September 17, 2009.
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kicked by an officer. Without providing any factual detail, Plaintiff merely concludes that “[a]ll
named defendants, and other John Does, had been warned personally about threats of retaliation
and certain types of retaliation such as assaults, including by Superior Court Judge Philip
Freedman, properly placing them as defendants. Then they lied by stating JA attacked them
which is why they have placed him in lock-up.” (Docket Entry #6, p. 1.) However, in the
absence of factual elaboration, this conclusory allegation does not state a failure to protect claim
against Dr. Merrill Main and the commissioners of the Department of Corrections and Human
Services. Thus, Main, Hayman and Velez will be dismissed as defendants.
IV. CONCLUSION
For the reasons set forth above, the Court will dismiss the Complaint as against
defendants Main, Hayman and Velez, and allow the § 1983 excessive force claim to proceed
against defendant Caldwell. The Court will enter an appropriate Order.
s/William J. Martini

WILLIAM J. MARTINI, U.S.D.J.
Dated: June 8, 2011

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