TINSLEY v. MAIN et al

Filing 189

OPINION. Signed by Judge Madeline Cox Arleo on 2/28/2019. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-7319(MCA)

RUSSELL TINSLEY,
Plaintiff,

OPINION

V.

MERRILL MAIN, PH.D., STU CLINICAL
DIRECTOR, et al.,
Defendants.

I.

INTRODUCTION
This mailer having been opened to the Court by two separate motions for summary

judgment. The first motion for summary judgment is brought by Defendants Merrill Main,
Ph.D., R. Van Pelt, and Christopher Beaumount, Ph.D. (“the DHS Defendants”) (ECF No. 137),
and purportedly seeks summary judgment on Plaintiffs First Amendment retaliation claims
all DHS Defendants. The DHS Defendants’ motion, however, squarely addresses only the
retaliation claims arising from Plaintiffs publication of a book and his promotion of a website,
which are pending against Defendant Van Pelt.’ The second motion for summary judgment is
brought by Defendant Sherry Yates and seeks summary judgment and dismissal of the
Complaint against her. (ECF No. 170.) For the reasons explained in this Opinion, the Court will
grant summary judgment as to Defendants Van Pelt and Yates. Because the DHS Defendants
have not properly moved for summary judgment on Plaintiffs First Amendment retaliation
claims against Main and Beaumount in connection with Plaintiff’s filing of grievances, the Court
does not consider these claims in the instant motion. Because summary judgment may be

Plaintiffs alleges that DHS Defendants Main and Beaumount retaliated against him for his
filing of numerous grievances not squarely addressed in the motion.
1

warranted on these claims, the Court will provide Defendants with 30 days within which to file a
new summary judgment motion directed at the remaining retaliation claims against DHS
Defendants Main and Beaurnount, and will also provide Plaintiff the opportunity to file
opposition to that motion.
II.

FACTUAL BACKGROUND2 AND PROCEDURAL HISTORY
a. Factual Background
In May 2010, Plaintiff was civilly committed to the Special Treatment Unit (“STU”) as a

sexually violent predator (“SVP”) under New Jersey’s Sexually Violent Predator Act (“SVPA”).
Plaintiff appealed his commitment to the Superior Court of New Jersey, Appellate Division,
which affirmed his commitment in an unpublished decision. In re Civil Commitment of R. T., No.
A-2521-13T2, 2016 WL 674215, at *1 (N.J. Super. Ct. App. Div. Feb. 19,2016). Plaintiffwas
civilly committed as a sexually violent predator due to his sexually related arrests and
convictions.3 See Id. at

*2_5

2 The factual background is taken from the parties’ papers. The Court notes that the DHS
Defendants and Plaintiff have not complied with Fed. R. Civ. P. 56 or L. Civ. R. 56.1. As
explained in Footnote 4, the DHS Defendants include blanket citations and unsupported
assertions in their Statement of Undisputed Material Facts. For purposes of this motion, the
Court disregards the DHS Defendants’ assertions that are not based in fact and/or are improperly
supported. Plaintiff has failed to submit a responsive statement of material facts with his
opposition brief Although the Court does not deem the DHS Defendants’ factual assertions
unopposed, it will not sift through Plaintiffs brief with a fine-tooth comb searching for any
assertions challenging the DHS Defendants’ factual assertions. Any further motions by the
parties shall comply with the Federal and Local Civil Rules.
According to the Appellate Division decision, Plaintiff’s prior court history shows at Least
seven sexually related arrests, including convictions in 1984, 1999, and 2005, in Philadelphia
and San Francisco. Since age thirteen he has also been charged with multiple non-sexual
offenses in Pennsylvania, California, and Nevada, including theft, burglary, fraud, assault, drug
*
and weapons offenses, vehicular manslaughter, and failure to register. (Id, at 1).
2

On or about August 2015, Plaintiff published a book: Civilly Committed!, ISBN-b
151 6825292. (Id. at ¶ 9 (citing ECF No. 1-6 PagelD: 101).) A review of the topics in the book
shows that it is critical of the SVPA and the STU, and views Plaintiffs continued detention as an
SVP to be unnecessary and unconstitutional. It appears undisputed that Plaintiffs book includes
personal identifying information and the un-redacted names of his victims. (Id at

¶

10 (citing

ECF No. 1-6 PagelD: 102).) It is also undisputed that Plaintiff is associated with a website with
the domain name, “pimpinentertainment.net.”5 (Id at ¶ 11 (citing ECF No. 1-6 PagelD: 101).)
On August 29, 2015, Plaintiff wrote a letter to Defendant Main together with a “Press
Release” about his book “Civilly Committed.” In the letter, Plaintiff asks Defendant Main to
review the book and provide comments, concerns, suggestions, and recommendations. (ECF No.
138-16, Plaintiffs Opposition at Ex. N.) It is also undisputed that Plaintiff was subsequently
placed on Program MAP by Defendant Van Pelt in connection with the publication of the book
and his alleged promotion of the website.6

Plaintiffs book, Civilly Committed! is currently available for sale on Amazon,
https://w\%w.amazon.corn/Civillv—Cornmilled-Russell
Tinslev/dp/l 51 6825292/refsr I I ?kcvv.ords=civillv+committed&qidl 5502441 85&sgatuva
v&sr$-l-spc1l (last visited February 15, 2019).

‘

Plaintiff concedes that he uses the website as a source of income, but disputes that the website
promotes a “rape mentality.”
6

MAP is a component of the clinical treatment program at the STU that focuses on stabilizing
disruptive or dangerous behaviors. See MX.L. v. Pew Jersey Dep’t ofHuman Sen’s/New Jersey
Dep’t of Corr., 379 N.J. Super. 37, 45. 876 A.2d 869, 873 (App. Div. 2005). The New Jersey
courts have explained the treatment component as follows:
There are four levels of MAP: Room, Tier, Wing, and Program.
Room, Tier and Wing MAP restrict the unescorted motion of a
resident to his room, his tier or his wing. The level of MAP
placement is proportionate to the apparent danger or instability
reflected by the resident. MAP levels represent an increasing return
3

On September 22, 2015, Defendant Van Pelt, wrote a Memorandum with the subject
“Program Map”, which states as follows:
Resident Tinsley’s pattern of poor judgment has reached
the point at which its consequences compel DHS to intervene. His
recent publication, available to the general public for purchase,
specifies the name of one of his victims, who was a minor at the
time of the offense. Such an action by Mr. Tinsley does not only
demonstrate poor judgment, it’s reflective of dismal treatment
progress. Furthermore, Mr. Tinsley continues to promote his
website that, by its very name, glorifies pimping which many
would define as very much part of ‘rape mentality.’
Mr. Tinsley will be placed on Program MAP effective
immediately. He is strongly recommended to pull his ‘book’ from
publication to prevent further harm to his victims. His poor
judgment, how it relates to treatment participation and progress,
will be addressed while on Program MAP. As such, Mr. Tinsleys
job will be suspended. Although Mr. Tinsley will not be prohibited
from publishing or sending anything that can legally be published
or sent, his restrictions will also include him having to process
future correspondence and publications, written, music, and
otherwise, with his therapists, particularly those to official entities.
but excluding legal correspondence. His Treatment Team looks
forward to the opportunity to assist Mr. Tinsley in exercising better
judgment regarding such matters.
Mr. Tinsley will be given the opportunity to process his
MAP placement in the Process Group during the next 30 days.
Should he require more time to process his MAP-related behavior
and how it affects his victims and progress in treatment, Mr.
Tinsley’s Program MAP cycle may be extended beyond 30 days.
of privileges, culminating in a return to the general population with
all privileges reinstated.
Program MAP is the lowest level of intervention and is instituted
when a resident is unwilling to control his anti-social behaviors
and has not developed the behavioral skills necessary to maintain
appropriate control. MAP can take a number of forms[, including]
the suspension of privileges. While in Program MAP, a resident
continues to attend all assigned treatment groups unless
specifically contra-indicated. MAP status is generally implemented
for thirty-day periods. with a review of that status every thirty days
or sooner if clinically appropriate.

Id. at 873-74.
4

The Treatment Team will continue to monitor and assess Mr.
Tinsley as he progresses through the MAP process and necessary
interventions will be implemented as needed.
(ECF No. 1-6, Ex. D-2 at page 4.)
On November 23. 2015, Plaintiff was also placed in treatment refusal in cotmection with
the publication of the book and continued promotion of the website, and for failing to
meaningfully engage in treatment, and was reassigned from Treatment Group 14 to Treatment
Group 1. (ECF No. 138-5, Plaintiffs Opposition at Ex. C.)
On November 23, 2015, Defendant Main wrote to Plaintiff in response to a grievance

submitted by Plaintiff In the letter. Defendant Main informs Plaintiff that his “‘book’ is clearly
evidence that you are refusing treatment by striving to turn whatever treatment you receive into a
self-serving process.” Defendant Main further states that Plaintiff “risk[s] re-victimizing [his]
victims by including full name along with city and state of residence at time of offense[,]”7
“repeatedly call[ing his victims] prostitutes”, and seeming to “take responsibility for [his]
offenses but then, essentially, claim[ing] to be innocent.” Defendant Main’s letter to Plaintiff
provides several examples from the book. (See ECF No. 138-5, Plaintiffs Opposition at Ex. C.)
Defendant Main further explains that Plaintiffs therapists and evaluators have been
telling him that the website “pimpinentertainment.com” is “troubling as it is supportive of rape

dynamics.” (Id.) Defendant Main suggests that Plaintiffs therapists may be able to help him
fornnilate a domain name change that will cause him minimal financial loss. (Id.)
The letter further states:
Mr. Tinsley. we respect your right to publish whatever you wish
and to name your business as you see fit. However, your book and
domain name stand as evidence of no meaningful participation or
In the letter, Defendant Main suggests that Plaintiff revise his book “to have no more than [his
victims’] initials in whatever [he] write[s].”
5

progress in your treatment. We offer rewards for that participation
and progress in the form of paid institutional work, use of personal
DVD player, game system, and television. You cannot earn these
rewards by claiming that you re participating and progressing
but then clearly showing otherwise.

(Id.)
A subsequent Memorandum from Defendant Van Pelt, issued on December 23, 2015,
reads as follows:
Resident Tinsley was placed on Program MAP on 9/22/15.
Program MAP was necessitated due to his publication of a “book”
which identifies full names of his victims and because he continues
to promote his website pimpinentertainment.
Mr. Tinsley Program MAP was extended on 10/23/15 and
11/23/15, as he did not adequately process his actions which led to
Program MAP placement—he still has not. Mr. Tinsley will be
allotted an additional 30 days to address his MAP placement in
process group with the assistance of his Treatment Team and
peers. Should Mr. Tinsley require more time to process his MAPrelated behaviors and how they affect his progress in treatment, his
Program MAP placement may be extended further.
While on Program MAP, Mr. Tinsley will lose his privilege to
work. He will also be expected to process future correspondence
and publications written music, and otherwise, with his
therapists, particularly those to official entities, but excluding legal
correspondence. Mr. Tinsley is again strongly recommended to
pull his ‘book’ from publication (or at least redact the names of his
victims) to prevent further harm to his victims. The Treatment
Team will ask Mr. Tinsley to open the business books of
pimpinentertainment.com. They will hold that information, as all
other information, in confidence but will be offering an opinion
about whether or not it is sufficiently profitable to suggest that a
domain name change can be done with minimal financial loss.
—

The Treatment Team will continue to monitor and assess Mr.
Tinsley and recommendations concerning MAP placement will be
made accordingly.
(ECF No. 138-5, Plaintiffs Opposition at Ex. C.)
After his placement on Program MAP. Plaintiff sought assistance from Kenneth Rozov.
Assistant Ombudsman, Office of the Corrections Ombudsman. Plaintiff has provided a series of

6

letters memorializing his communications with Mr. Rozov and Mr. Rozov’s attempts to
intervene on his behalf with Defendant Main. In an October 30, 2015 letter to Defendant Main,
Mr. Rozov states that Plaintiff informed him that Plaintiff was placed on Program MAP and
Treatment Probation for publishing a book that uses the names of his alleged victims, and for
having the rights to a website called pimpinentertainment.net. (ECF No. 138-11, Plaintiffs
Opposition at Ex. I.) Mr. Rozov takes the position that this is a misuse of MAP, which he
believes should be used for “behavioral acting out” and not for publishing a book. Id. In an
October 30, 2015 letter to Rozov, Defendant Main strenuously disagrees with Mr. Rozov’s
assessment. (See id.)
Plaintiff was removed from Treatment Refusal status on August 22, 2016. (ECF No.
138-5, Plaintiff’s Opposition at Ex. C.) On August 25, 2016, he was again placed on Treatment
Refusal status for failing to redact or conceal the names of his victims from his book. (See Id.) It
is not clear from the record whether Plaintiff remains on Program Map or in Treatment Retitsal
status.
In a letter dated August 21. 2017, Defendant Main wrote to Plaintiff regarding his new
grievance about his book. Defendant Main states that in the book, Plaintiff “basically assert[sj
that [he] did not commit the sexual offenses for which [he was] convicted”, which “shows that
[he hasj made little or no progress in treatment.” Defendant Main finds it “ironic” that Plaintiff
believes that he “published the book as evidence of the great progress [Plaintiff hasi made in
treatment.” (See Id.) Defendant Main further predicts that the courts will decide that the “we
may decline to reward you for publishing a book that names victims, calls them prostitutes,
essentially claims that you’re innocent, and for choosing a domain name that we know to be
supportive of rape dynamics.” (Id.)

7

b. Procedural History
Plaintiff initiated the instant civil action on October 6, 2015, naming as Defendants
former DOC employee and STU Administrator, Sherry Yates; as well as DHS personnel. Merrill
Main, Ph.D.; Shantay Adams; R. Van Pelt; J. Ottino; Lashonda Burley, Psy.D.; and Christopher
Beaumount, Ph.D. [ECF No. 1]. On March 10, 2016, Defendants Adams, Beaumount, Burley,
Main, Van Pelt, and Ottino filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (ECF
No 20), with DOC Defendant Sherry Yates filing her own Motion to Dismiss on March 29.
2016. (ECF No. 26). However, the latter’s submission was filed improperly, and was ultimately
tenuinated.
In the DHS Defendants’ first motion to dismiss, the Court dismissed without prejudice all
non-retaliation claims against the DHS Defendants, and denied the motion to dismiss as to
certain First Amendment retaliation claims against Defendants Beaumount, Main, and Van Pelt,
which are described in more detail below. On December 23, 2017, Plaintiff filed an Amended
Complaint adding as Defendants DHS staff members Yaneris Corniel; J. Dmowski, Psy.D.;
Kimberly Stokes, LCSW; and Dean Dc Crisce. M.D.: as well as Jo Astrid Glading of the Office
of the Public Defender; and Mark Singer of the New Jersey Office of the Attorney General.
(ECF No. 72 & 77). The DHS Defendants’ motion to dismiss Plaintiff’s Amended Complaint
was filed on January 24, 2017 (ECF No. 86), and the Court dismissed, as to the DHS
Defendants, all but the aforementioned First Amendment retaliation claims against Defendants
Beaumount, Main, and Van Pelt. (ECF No. 105.) Defendant Yates also filed a Motion to
Dismiss Plaintiff’s Amended Complaint on August 21. 2017 (ECF No. 103); the Court denied
the motion because it was filed out of time. (ECF No. 141.)

8

DHS Defendants Beaumount, Main, and Van Pelt filed a Motion for Summary Judgment
pursuant to Fed. R. Civ. P. 56 on February 9,2018. (ECF No. 137.) Defendant Yates’ motion
for summary judgment was filed on July 23, 2018. (ECF No. 170.) Plaintiff has submitted
opposition to both motions (ECF Nos. 138-39, 175), and Defendants have submitted their
respective replies. (ECF Nos. 140, 179.) The matter is now ready for disposition.
III.

STANDARD OF REVIEW
Summary judgment is appropriate where the Court is satisfied that “there is no genuine

issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P.56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is
genuine only if there is “a sufficient evidentiary basis on which a reasonable jury could find for
the non-moving party,” and it is material only if it has the ability to “affect the outcome of the
suit under governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248.
“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor

.“

Marino

v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 447 U.S. at 255));
see also Matsushita Elec. Inc/us. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v.
Kiem, 298 F.3d 271, 276—77 (3d Cir. 2002).
The burden of establishing that no “genuine issue” exists is on the party moving for
summary judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”

9

Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must
present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County ofLawrence. 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under
Anderson, Plaintiffs’ proffered evidence must be sufficient to meet the substantive evidentiary
standard the jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party
must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Celotex, 477 U.S. at 324 (quotations omitted); see also Matsushita, 475 U.S. at
586; Ridgewood Bd. of Ed. v Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits
of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big
Apple BMW, Inc. v. BMWofN. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322—23. “[A]
complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id at 323; Katz v, Aetna Cas. & Stir. Co.. 972
F.2d 53, 55 (3d Cir. 1992).
A document filed pro se is to be “liberally construed” and “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Parc/us, 551 U.S. 89, 94(2007) (quoting Estelle v Gamble, 429 U.S. 97,
106 (1976)). In addition, when considering a motion in a prose plaintiffs proceedings, a court

10

must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by
name.” Holley v. Dept of Veteran Affairs. 165 F.3d 244, 247—48 (3d Cir. 1999). Nevertheless,
on a motion for summary judgment. “a pro se plaintiff is not relieved of his obligation under
Rule 56 to point to competent evidence in the record that is capable of reftiting a defendant’s
motion for summary judgment.” Ray v. Fed. Ins. Co., No. 05-2507, 2007 WL 1377645, at *3
(E.D. Pa. May 10, 2007). “[M]erely because a non-moving party is proceeding pro se does not
relieve him of the obligation under Rule 56(e) to produce evidence that raises a genuine issue of
material fact.” Bovkins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (ED. Pa. 2000); see also
Dawson v Cook, 238 F. Supp. 3d 712, 717 (ED. Pa. 2017).
IV.

ANALYSIS
a. Motion for Summary Judgment by Sherry Yates
The Court begins with the motion for summary judgment brought by Defendant Yates.

The Court agrees with Defendant Yates that Plaintiffs allegations against her stem solely from
her position as Administrator of the STU, and she is entitled to summary judgment because
Plaintiff has not provided evidence that she was personally involved in the alleged violations of
Plaintiffs civil rights.
Although Defendant Yates is named in the Complaint and Amended Complaint, and
appears to have been a DOC Administrator during the relevant time period, there are no
allegations in the Amended Complaint explaining how Defendant Yates is responsible for the
alleged wrongs pleaded in the Amended Complaint. Plaintiff has not provided any evidence
showing that Defendant Yates participated in any alleged wrongs, knew of the wrongs and
acquiesced in them, issued or enforced any relevant policies. andlor failed to supervise or train
the other individual Defendants. See Rode v. Dellarciprete. 845 F.2d 1195, 1207 (3d Cir. 1998)

11

(stating that “[a] defendant in a civil rights action must have personal involvement in the alleged
wrongs; liability cannot he predicated solely on the operation of respondea! superior”); Barkes v.
First Correctional MedicaL Inc., 766 F.3d 307, 316-19 (3d Cir. 2014) (outlining the general
ways supervisors may be liable under

§

1983), reversed on other grounds by Taylor v. Barkes,

135 S. Ct. 2042, 2043 (2015). Any liability she may have appears premised on an impermissible
theory of respondeat superior.
Defendant Yates was not involved, directly or indirectly, in denying Plaintiff’
advancement in treatment or placing him on MAP status in response to the publication of his
book, the promotion of the website, or his filing of grievances. Moreover, the Court previously
dismissed without prejudice all non-retaliation claims in the Amended Complaint, including
Plaintiff’s Fourteenth Amendment claims arising from his conditions of confinement at the STU
and the denial of adequate treatment. Because Plaintiff failed to allege colorable violations of
the Fourteenth Amendment arising from his conditions of confinement or inadequate treatment,
and has not cured those deficiencies through amendment, Defendant Yates cannot be held liable
for these violations as a supervisor.
Finally, Plaintiff has not provided any evidence that Defendant Yates participated in any
violations of his constitutional rights. At the summary judgment stage, Plaintiff must move
beyond the pleadings and provide such evidence. See Boykins v. Lucent Techs., Inc., 78
F.Supp.2d at 408. The failure to do so is fatal to his claims against Defendant Yates.
For these reasons, the Court will grant Defendant Yates’ motion for summary judgment.
b. Motion for Summary Judgment by the DILS Defendants
The DHS Defendants also move for summary judgment. The Court begins its analysis by
clarifying the First Amendment retaliation claims at issue in the instant litigation. In denying

12

Defendant& motions to dismiss the Original and Amended Complaints, the Court assessed the
conduct of each DHS Defendant separately and denied the motions to dismiss on the basis of tw
separate types of constitutionally protected activity: (1) the Court denied the motions to dismiss
Plaintiffs allegations that Defendant Van Pelt retaliated against Plaintiff in connection with his
publication of a book about his civil commitment;8 and (2) the Court denied the motion to
dismiss Plaintiff’s allegations that Defendant Main and Defendant Beaumount retaliated against
Plaintiff for his filing of numerous grievances.
The DHS Defendants’ motion for summary judgment addresses the First Amendment
retaliation claims against Defendant Van Pelt in connection with Plaintiff’s publication of the
book and promotion of the website, but fails to address the First Amendment retaliation claims
against Defendants Beaumount and Main in connection with Plaintiffs filing of grievances. As
explained below, the Court will grant summary judgment to Defendant Van Pelt for the
retaliation claims arising from the publication of the book and the promotion of the website, but
does not address the retaliation claims against Defendants Beaumount and Main arising from
Plaintiffs filing of grievances.
Retaliation against a prisoner based on his exercise of a constitutional right violates the
First Amendment. Bisi’rian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012) (citing Mitchell v. Horn,
318 F.3d 523, 529—31 (3d Cir. 2003); Rauser v Horn, 241 F.3d 330, 333—34 (3d Cir. 2001);
Allah v. Seiverling, 229 F.3d 220, 224—26 (3d Cir. 2000). To prevail on a retaliation claim,
plaintiff must demonstrate that (1) he engaged in constitutionally-protected activity; (2) he
suffered, at the hands of a state actor, adverse action “sufficient to deter a person of ordinary

Plaintiff also asserts that Defendant Van Pelt retaliated against him for his association with a
website called pimpinentertainrnent.net, and the Court addresses this allegation together with the
publication of the book.
13

firmness from exercising his [constitutional] rights”; and (3) the protected activity was a
substantial or motivating factor in the state actor’s decision to take adverse action. Rauser, 241
F.3d at 333 (quoting Allah, 229 F.3d at 225); see also Tinsley v. Giorla, 369 F. App’x 378, 381
(3d Cir. 2010).
The Court now considers whether Defendant Van Pelt is entitled to summary judgment
on Plaintiff’s First Amendment retaliation claim arising from Plaintiffs publication of a book
and his promotion of a website. For the reasons explained below, the Court finds that the Third
Circuit’s decision in Oliver v. Roquet, 858 F.3d 180 (2017) controls, and the Court will grant
summary judgment on the First Amendment retaliation claims against Defendant Van Pelt.
In Oliver v. Roquet, which was decided after this Court denied Defendants’ first motion
to dismiss, the plaintiff, also an SVP, was denied advancement to the next phase of treatment,
and he sued a psychologist at the SIC for allegedly retaliating against him for his own legal
activities and his legal activities on behalf of other residents. The primary facts in support of the
retaliation claim were contained in a report, which, among other things, suggested that the
plaintiff may need to consider whether his focus on legal activities was interfering with his
treatment. See id. at 185-86. Oliver was decided at the motion to dismiss stage, and the Third
Circuit clarified the pleading requirements for a retaliation claim against a mental health
professional at a state institution, holding that “a prima facie showing of causation requires more
than the allegation that the professional based a medical decision on symptoniology that
happened to relate in some way to a patient’s protected activity.” Instead, there must be
particular facts alleged that allow the court to reasonably infer it is the protected activity itself,
and not simply medically relevant behavior associated with that activity, that formed the basis of
the defendant’s adverse action.” Id. at 192. Thus, after Oliver, to state a First Amendment

14

retaliation claim against a medical professional based on treatment decisions that seem to target
ional
or affect a protected activity, a Plaintiff must provide facts showing that the medical profess
targeted the protected speech itself and not just the legitimate clinical or collateral consequences
of that speech.
According to the Third Circuit,
“[tjhis is so because a medical professional’s holistic approach to
diagnosing a patient’s mental health will sometimes require
consideration of his otherwise protected speech and conduct to
evaluate any adverse consequences they are having on his
treatment. Framed in terms of the Rauser test and the relevant
pleading standards, an assertion by a mental health detainee that
his treating psychologist retaliated against him, based only on the
factual allegation that the psychologist considered the effect his
First Amendment activity was having on his treatment, would not
support the inference that retaliation was the “substantial or
motivating factor” for the psychologist’s recommendation.

Oliver, 858 F.3d at 192.
The Third Circuit further explained that a medical report or decision “purporting to focus
only on the collateral consequences of a detainee’s First Amendment activity could be sufficient
to establish a prima facie case of retaliation plaintiff where the plaintiff is able to plead
way of
‘consideration plus,’—i.e.. where, in addition to consideration of the protected activity by
its association with medically relevant conduct, there are specific factual allegations supporting
an inference that the adverse action was based on the protected activity itself.” Id.
“Consideration plus” may exist, for example, where the complaint contained “specific factual
allegations suggesting that the collateral consequences were fabricated. [allegations] that the
defendant had communicated anger or frustration with the protected activity itself or had
uences
threatened to take action against the plaintiff, or [allegations] that the collateral conseq
relied upon were irrelevant to the medical judgment in question.” Id.

15

Here, Plaintiff asserts a First Amendment retaliation claim against Defendant Van Pelt
because Van Pelt placed him on Program MAP in connection with his publication of a book and
his promotion of a website entitled “pimpinentertainment.net.” Similar to the facts in Oliver,
Plaintiffs Complaint. Amended Complaint, and the exhibits to his Opposition Brief rely
primarily on Memoranda issued by Defendant Van Pelt. The Memoranda plainly indicate that
Defendant Van Pelt considered the effect Plaintiffs First Amendment activities were having on
his treatment; thus, pursuant to Oliver, the Memoranda do not, without more, suggest that
Defendant Van Pelt was targeting the constitutionally-protected activity itself, i.e., the book or
the website. In the Memoranda, Defendant Van Pelt expresses concern that Plaintiffs
publication of a book that uses the fiJi the names of his victims, reflects bad judgment and a lack
of treatment progress and that Plaintiffs promotion of the website “glorifies pimping” and “rape
mentality.” Nothing in the Complaint/Amended Complaint or in the exhibits presented by
Plaintiff in his opposition create a triable issue of fact suggesting that Plaintiffs placement on
Program MAP (or Treatment Refusal) was based on his First Amendment activities themselves,
i.e. the book or the website. Indeed, DHS Defendants Van Pelt and Main indicate Plaintiff could
remedy the situation by redacting the names of his victims from the book and by changing the
name of his website.
In his opposition, Plaintiff has not provided any evidence that the collateral consequences
of his First Amendment activities are fabricated, that Defendant Van Pelt (or Defendant Main)
expressed anger or frustration with the protected activities themselves, or that Plaintiffs
identification of his victims in the book and/or the use of the domain name
pimpinentertainment.net are irrelevant to Plaintiffs treatment as an SVP. Although exhibits
submitted by Plaintiff indicate that Mr. Rozov, the Assistant Ombudsman, apparently

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disapproves of Plaintiffs placement on Program MAP in connection with his book and the
n
website, and believes such placement is a misuse of Program MAP, this disagreement betwee
Mr. Rozov and Defendant Main does not suggest that the Defendant Van Pelt (or Defendant
Main) was targeting Plaintiffs protected activities themselves.9 Because Plaintiff cannot
ant
establish sufficient causation to sustain his First Amendment retaliation claim against Defend
Van Pelt, the Court will grant summary judgment to Defendant Van Pelt on Plaintiffs First
Amendment retaliation claim in connection with the book and website.1°
c.

Remaining Retaliation Claims Against Defendants Main and Beaumount

The remaining issues in this litigation are whether Defendants Beaumount and/or Main
retaliated against Plaintiff by failing to advance Plaintiff in treatment due to his filing of
at the
numerous grievances. The parties appear to agree that throughout his civil commitment
of
STU. Plaintiff frequently filed internal grievances regarding his treatment and other aspects
his conditions of confinement at the STU. (DSMF at

¶ 7 (citing ECF No.

1-5 PagelD: 62-98).)

tion with
Plaintiff attached to his original Complaint numerous grievances he has filed in connec
his
his treatment.” (See ECF No. 1-5, Ex. C to Complaint.) In a September 9,2014, letter to
2015,
With his opposition, Plaintiff also submitted a “Confidential Report” dated September 9,
er. The
and prepared by Ronald G. Silikovitz, Ph.D. at the request of Plaintiffs public defend
insight into the
report, which recommends Plaintiffs release from the STU, does not provide any
issue at hand whether Plaintiffs placement on Program MAP was retaliatory.
—

In denying the second motion to dismiss, the Court did not construe Plaintiff to raise a
in
supervisory claim against Defendant Main based on his knowledge and acquiescence
book and
Defendant Van Pelt’s decision to place Plaintiff on MAP status in connection with the
Defendant Main would
website. To the extent Plaintiff seeks to bring such a supervisory claim,
ffs
also be entitled to summary judgment because Defendant Van Pelt did not violate Plainti
Amendment activities on his
constitutional rights by considering the effect of Plaintiffs First
treatment. Nor has Plaintiff submitted any evidence suggesting that Defendant Main was
also
independently targeting Plaintiffs protected activities, as the letters from Defendant Main
focus on the effect Plaintiffs protected activities have on his treatment.
ffs complaint, the DHS Defendants
“ With a general citation to the grievances attached to Plainti
of his
contend that Plaintiffs grievances demonstrate that he “refuses to participate in aspects
O

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public defender, Plaintiff asserts that his therapist Defendant Beaumount, failed to advance him
in treatment based on complaints Plaintiff made against Beaumount and another therapist.
According to the letter. Plaintiff’s grievances led to an investigation of the therapists by OHS and
the Division of Mental Health and Newark Board of Psychologists. (See ECF No. 138-16,
Plaintiffs Opposition Br. at Ex. N.) In an October 7, 2014 letter response to Plaintiffs
September 4, 2014 letter, Defendant Main acknowledges that Plaintiff has “every right to
complain”, but suggests that “putting additional energy into your treatment may be wiser.” (Id.)
Plaintiff appears to assert in his Complaint and Amended Complaint, however, that Defendant
Main told him on or about October 11,2014 that Plaintiff would never advance in treatment if he
continued to file grievances.’2 (See ECF No. 77, Amended Complaint at

40.)

As noted above, the Court does not address these issues in the instant motion because
they were not fairly raised in the OHS Defendants’ summary judgment motion, and Plaintiff has
not had an opportunity to respond. Under Fed. R. Civ. P. 56(f), the Court, after giving the parties
notice and an opportunity to respond, is permitted to (I) grant summary judgment on a ground
not raised by the parties or (2) consider summary judgment on its own after identifying the
material facts that may not be in dispute. Because the parties are in a better position to identify
the material facts relevant to these issues, the Court will instead provide the DHS Defendants

sex offender treatment, commits institutional infractions, and violates STU conduct policies.”
See id. at ¶ 8. The Court disregards this paragraph, as it contains only a blanket citation and is
plainly the DHS Defendants’ interpretation of the grievances and not a factual assertion.
Similarly, the Court disregards the DHS Defendants’ argument in their brief that the numerous
grievances filed by Plaintiff demonstrate a pattern of oppositional behavior and that the
responses by the OHS Defendants were reasonable and thorough. (See Moving Brief at 137-2),
as the record before the Court does not permit the Court to make such determinations, and many
of the grievances submitted by Plaintiff are illegible.
In their Statement of Undisputed Material Facts and briefing, the OHS Defendants do not
squarely address these or other allegations that Defendants Beaumount and Main retaliated
against Plaintiff for his filing of grievances.
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with an opportunity to move for summary judgment on the remaining claims within 30 days of
the date of this Order. Plaintiff shall have 30 days to submit his response,’3 and Defendants may
submit a reply within 7 days thereafter.
CONCLUSION

V.

For the reasons explained in this Opinion, summary judgment is granted to Defendants
Yates and Van Pelt. The DHS Defendants may file a summary judgment motion as to the
remaining claims against Defendants Main and Beaumont within 30 days. Plaintiff may file his
response within 30 days, and Defendants may file a reply within 7 days. An appropriate Order
follows.

Madeline Cox Arleo, U.S.D.J.
Dated

On November 30, 2018, Charles H. Landesman entered an appearance on behalf of Plaintiff
(ECF No. 185.) It is not clear if Mr. Landesman intends to represent Plaintiff on future motions
and/or at trial. Because it is not clear that Plaintiff is represented, the Court will provide
additional time for Plaintiff to respond to Defendants’ motion and will send copies of the Court’s
Opinion and Order to him at the address on file.
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