OLIVER v. ROQUET

Filing 33

OPINION fld. Signed by Judge Jose L. Linares on 8/28/14. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LORENZO OLIVER,

Civil Action No. 2:13-1881 (JLL) (JAD)

Plaintiff
OPINION
V.

DEBRA ROQUET, Psy.D.,
Defendant.

LINARES, District Judge.

This matter comes before the Court upon the Motion of Defendant Debra Roquet, Psy.D.
(“Defendant”) to Dismiss the Complaint of Plaintiff Lorenzo Oliver (“Plaintiff”) pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 28.) The Court has considered the
submissions made in support of and in opposition to Defendant’s Motion, and decides this matter
without oral argument pursuant to Fed. R. Civ. P. 78. Based on the following and for the reasons
expressed herein, Defendant’s Motion to Dismiss is granted in part and denied in part.
I

BACKGROUND

Plaintiff is a civilly committed resident at a Special Treatment Unit (“STU”) in Avenel,
New Jersey. (“Am. Compi.,” ECF No. 26

¶ 1.) Plaintiff was trained and certified as a paralegal

by the Department of Corrections Education Department in 1991. (Id.

¶ 3.) Plaintiff is also the

editor of a newsletter titled “Residents Legal Association Bulletin News Letter.” (Id.) Defendant
is a psychologist at the STU, and a member of the Treatment Progress Review Committee
(“TPRC”). (Id.

¶ 4.)
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Plaintiff has assisted a number of STU residents in the writing and filing of their legal
actions. (Id.

¶J 15-16.) For example, in December 2011, Plaintiff filed a complaint in federal

court on behalf of STU resident Douglas Minatee. (Id.

¶ 10.) Dr. Nicole Paolillo, a member of

the TPRC, and Julia Kireev, head of the Therapeutic Community at the STU, were defendants in
that case. (Id.) Plaintiff asserts that Defendant and Paolillo are friends. (Id.

¶ 13.)

Plaintiff states that in August 2011, he released his first newsletter, in which he
complained that STU residents were being deprived of numerous rights to which they were
legally entitled. (Id.) Plaintiff claims that after he sent the newsletter to the Governor of New
Jersey, the State created a new law that prevented STU officials from improperly removing
welfare funds from the STU Residents Welfare Fund. (Id.

¶ 24.) Plaintiff also states that in April

2012, he began to hang leaflets in various rooms at the STU, advising residents not to accept
a
settlement that was offered in a case that a number of them were involved in. (Id.

¶ 25.) Plaintiff

asserts that he gathered over 223 signatures and submitted a petition to the Court requesting
that
the settlement be rejected and that Barbara Moses, Esq. be removed as defense counsel.

(ich)

Plaintiff contends that Moses was subsequently removed as counsel.
(jçl.)
Plaintiff contends that the treatment program at the STU involves a number of phases.
(Id.

¶ 17.) He asserts that the STU Resident Handbook provides various goals and expectations

involved with completing phase two, and that he has completed a number of these goals.
(Id.

¶J

18-19.) Plaintiff states that his Treatment Team reported his progress on the goals
as well as a
number of positive behavioral changes to the TPRC. (Id.

¶ 20.) On June 14, 2012, Defendant

issued a report from the TPRC recommending that Plaintiff remain in phase two
of treatment.

(Ici ¶ 6.) Tn her report, Defendant stated, among other things, that Plaintiff is legalistic and
spends a great deal of time and energy on his role as a paralegal. (Id.

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¶J 6-7.) Plaintiff claims that

Defendant has allowed other residents who have completed less work than him to move to phase
three. (Id.

¶ 9.)

Plaintiff filed a Complaint against Defendant on March 25, 2013. (ECF No. 1). Counts
one and two alleged a violation of Plaintiff’s constitutional right of access to courts, count three
alleged First Amendment retaliation, count four alleged a violation of Plaintiff’s rights under
New Jersey Patients’ Bill of Rights, N.J.S.A. 30:4-24.2, and count five alleged a violation of
Plaintiff’s right of access to courts and his right to freedom of speech in violation of the New
Jersey Civil Rights Act, N.J.S.A. 10:6-2 (the “NJCRA”). Defendant filed a Motion to Dismis
s
and/or for Summary Judgment on September 23, 2013. (ECF No. 12). On April 14, 2014, this
Court dismissed counts one and two without prejudice, allowed count three to proceed,
dismissed count four with prejudice, dismissed the right of access to courts claim in count five
without prejudice, and allowed the retaliation claim in count five to proceed. (ECF No. 22.)
Plaintiff filed an Amended Complaint on June 16, 2014 alleging (i) retaliation under the First
Amendment, (ii) a violation of New Jersey’s Administrative Code 10:36A-2.1, and (iii)
retaliation under the NJCRA. Defendant filed the instant Motion to Dismiss on July 14, 2014.
(ECF No. 28.) Plaintiff filed an Opposition on August ii, 2014. (ECF No. 29). Defendant
filed a
Reply on August 27, 2014. (ECF No. 32.)
IL

STANDARD OF REVIEW

For a complaint to survive dismissal, it “must contain sufficient factual matter, accept
ed as
true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Igbal, 556 U.S.
662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals
of the
elements of a cause of action, supported by mere conclusory statements, do not suffice
.” Id.
In determining the sufficiency of a complaint, the Court must accept all well-pleaded

3

factual allegations in the complaint as true and draw all reasonable inferences in favor
of the nonmoving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
But, “the
tenet that a court must accept as true all of the allegations contained in a complaint is inappl
icable
to legal conclusions.” Igbal, 556 U.S. at 678. Thus, legal conclusions draped in the guise
of factual
allegations may not benefit from the presumption of truthfulness.
Id,
III

DISCUSSION
A. First Amendment Retaliation

Count one of the Amended Complaint alleges that Defendant retaliated against Plainti
ff
in violation of the First Amendment by denying him access to phase three of treatm
ent after
Plaintiff wrote articles in a legal newsletter and filed a petition to remove the defense counse
l in
an action that a number of STU residents were involved in.
Defendant first asserts that Plaintiff has failed to state a claim for First Amendment
retaliation under Rule 12(b)(6). As this Court decided in its prior opinion that Plainti
ff has
satisfied Rule 12(b)(6), it will not revisit this issue. Second, Defendant argues that
this claim
should be dismissed on the basis of qualified immunity. Plaintiff argues that Defend
ant is barred
from making this argument under Federal Rule of Civil Procedure 12(g)(2), which
provides:
“Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under
this rule must not
make another motion under this rule raising a defense or objection that was availab
le to the party
but omitted from its earlier motion.” Under Rule 12(h), a party may raise a defens
e not included
in a prior motion in (i) any pleading allowed under Rule 7(a), (ii) in a motion for
judgment on the
pleadings under Rule 12(c), or (iii) at trial.
Defendant argues that Rule I 2(g)(2) is not applicable here because an amend
ed complaint
was filed and thus Defendant is entitled to assert defenses not raised in its motion
to dismiss the

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original complaint. However, this District has stated that “[w]ith respect to amend compl
ed
aints
and Fed. R. Civ. P. 1 2(g)(2), even if a plaintiff files an amended complaint.

.

.

[it] does not

revive the right to interpose defenses or objections which might have been made to
the original
complaint.” Slutskyv. Guadagno,No. 10-5331, 2013 WL 5523688, at *5 (D.N.J Oct.
.
3,2013)
(internal quotations and citation omitted). Here, the defense of qualified immunity
could have
been raised in Defendant’s first motion to dismiss. Although this Court notes that “[m]an
y courts
believe that taking such a hypertechnical approach [to Rule 12(g)(2)] does not make
sense”
and “have permitted successive motions to dismiss to avoid unnecessary delay,”
In re Opus E.,
L.L.C,, 480 B.R. 561, 569 (Bankr. D. Del. 2012) (citing cases), Defendant has not pointe
d to
case law that is binding on this Court that supports such a conclusion.’ As such, this Court will
not act in contravention to the language of Rule 12(g)(2). Further, because the portion
of
Plaintiff’s Opposition that addresses qualified immunity focuses only on Rule 12(g)(2
), the Court
finds it improper to reach the merits of the issue at this time. To the extent that Defend
2
ant
wishes to raise a qualified immunity defense, she may do so in a motion for judgm
ent on the
pleadings pursuant to Rule 12(c) or a motion for summary judgment pursuant
to Rule 56(a). This

l

Defendant quotes the following language used by this Court to support his propos
ition: “Once an amended
complaint is filed, the original complaint no longer performs any functio in
n the case
Aruanno v. Green, No.
09-1542, 2012 U.S. Dist. LEXIS 123394, at *24 n. 4 (D.N.J. Aug. 29, 2012).
However, Defendant takes this
language out of context, as this Court was simply explaining that a Plainti
ff cannot use facts alleged in an original
complaint to survive a motion to dismiss an amended complaint if such facts
were not included in the amended
complaint. A more complete reading of this Court’s language in Aruanno is
as follows:
....“

This Court will not try to piece together the allegations in the Complaint, Amend
ed Complaint, and
second amended complaint, like a puzzle. Once an amended complaint
is filed, the original
complaint no longer performs any function in the case and cannot genera
lly be utilized to cure
defects in the amended complaint.
Id.
While it is arguable that Plaintiff should have addressed the merits of Defend
ant’s qualified immunity argument in
his Opposition, this Court will not fault Plaintiff, who is pro Se, for solely relying
on Rule 1 2(g)(2), as Plaintiff is
correct in arguing that Defendant’s motion violates this rule.
2

5

will both alleviate the Rule 12(g)(2) issue and allow Plaintiff to respond to Defend
ant’s qualified
immunity defense.
Accordingly, count one of the Amended Complaint may proceed.
B. NJCRA Retaliation

Count three of the Complaint alleges retaliation under the NJCRA. The same issues
discussed above with respect to Plaintiffs First Amendment retaliation claim
apply to Plaintiffs
NJCRA retaliation claim. Accordingly, count three of the Amended Complaint
may proceed.
C. N.J.A.C. 1O:36A-2.1

Count two of the Amended Complaint alleges that Defendant “use[d] treatment to
modify
and vary a civil right of [P]laintiff’s

.

.

.

in violation of [N.J.A.C.] 1 0:36A-2. 1.” (Am. Compi.

¶

27.)
The Sexually Violent Predator Act (“SVPA”) specifically exempts sexually violen
t
predators from the New Jersey Patients’ Bill of Rights, N.J.S.A. 30:4-24.2
by providing the
following:
Notwithstanding the provisions of [N.J.S.A. 30:4-24.2] or any other law
to the
contrary, the rights and rules of conduct applicable to a person subjec
t to
involuntary commitment as a sexually violent predator pursuant to [N.J.S.A.
30:427.24] shall be established by regulation promulgated jointly by the Comm
issioner
of Human Services and the Commissioner of Corrections, in consultation
with the
Attorney General. The regulations promulgated under this subsection shall
take into
consideration the rights of patients as set forth in [N.J.S.A. 30:4-24.2],
but shall
specifically address the differing needs and specific characteristic
s of, and
treatment protocols related to, sexually violent predators. In developing
these
regulations, the commissioners shall give due regard to security concerns
and safety
of the residents, treatment staff, custodial personnel and others in and about
the
facility.
N.J.S.A. 30:4-27.34. In accordance with this statutory mandate, N.J.A.
C. 10:36A was enacted.
See 38 N.J. Reg. 1984(a). Plaintiff seeks relief under N.J.A.C. lO:36A-2.1,
which provides:
Subject to the Sexually Violent Predator Act (SVPA), and any other provisi
ons of
law and the Constitution of New Jersey and the United States, a residen
t shall not
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be deprived of a civil right solely by reason of receiving treatment under the
provisions of the SVPA. Treatment shall not modify or vary legal or civil rights
including but not limited to, the right to register for and to vote in elections, or
rights relating to the granting, forfeiture, or denial of a license, permit, privilege, or
benefit pursuant to any law, except those rights related to providing a safe, secure
facility or any appropriate concern.
N .J.A.C. 10 :36A-2. 1(a). Defendant asserts that no private right of action exists under
this statute.
When a statute does not expressly provide a private right of action, New Jersey courts
“have been reluctant to infer” such a right. R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consu
mer Ins.
Co., 773 A.2d 1132, 1142 (N.J. 2001). The factors used by courts to determine whethe
r a statute
confers an implied private right of action include whether:
(1) plaintiff is a member of the class for whose special benefit the statute was
enacted; (2) there is any evidence that the Legislature intended to create a
private right of action under the statute; and (3) it is consistent with the
underlying purposes of the legislative scheme to infer the existence of such a
remedy
RI. at 1143. While courts give weight to all three factors, “the primary goal has almost
invariably been a search for the underlying legislative intent.”

(quoting Jalowiecki v.

Leuc, 440 A.2d 21, 26 (N.J. Super. Ct. App. Div. 1981)).
Here, N.J.A.C. 1 0:36A-2. 1 does not expressly provide a private right of action, and there
is no evidence that the Legislature intended to create an implied right. In fact, it is telling
that the
SVPA specifically exempts sexually violent predators from New Jersey Patients’
Bill of Rights,
recognizing that the Depart of Humans Services and the Department of Corrections
are specially
equipped to handle the needs of these individuals. Further, N.J.S.A. 30:4-27.34 provid
es that the
purpose of a statute enacted by the DHS and DOC is to address the “security concer
ns and safety
of the residents, treatment staff, custodial personnel and others in and about
the facility.” This
purpose does not suggest that a private cause of action was intended. Finally,
there is not a single
case that cites to N.J.A.C. 10:36A-2.1, much less one that holds that a private
cause of action
7

exists under this statute.
Accordingly, count two of the Amended Complaint is dismissed with prejudice.
P

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is granted in part and denied
in part. An appropriate order follows this Opinion.

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Jose L. Linares, U.S.D.J.
Date:
Original:
cc:

,
2
August, 2014
C1erk’s Office
Hon. Joseph A. Dickson U.S.M.J.
All Counsel of Record
File

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