TRAYLOR et al v. LANIGAN et al

Filing 4

OPINION. Signed by Judge Madeline Cox Arleo on 5/31/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TERRY TRAYLOR,

Civil Action No. 16-7691(MCA)

Plaintiff,
V.

OPINION

GARY LANIGAN, et al.,
Defendants.

I.

INTRODUCTION
Plaintiff Terry Traylor is currently civilly committed to the East Jersey State Prison

Special Treatment Unit (STU) in Avenel, New Jersey, pursuant to the New Jersey Sexually
Violent Predator (“SVP”) Act N.J. Stat. Ann.
,

civil rights action pursuant to 42 U.S.C.

§ 30:4-27.24 et seq. Plaintiff has brought this

§ 1983. and appears to seek class certification on behalf

of himself, five other individual plaintiffs, and all those “similarly situated.” Based on his
affidavit of indigence, the Court granted Plaintiffs application to proceed informa pauperis
(“1FF”) pursuant to 28 U.S.C.

§ 1915 and ordered the Clerk of the Court to file the Complaint.’

(ECFNo. 3.)
At this time, the Court must review the Complaint pursuant to 28 U.S.C.

§ l9l5(e)(2)(B),

to determine whether this action should be dismissed as frivolous or malicious, for failure to state
a claim upon which relief may be granted. or because it seeks monetary relief from a defendant

‘The Court granted IFP status to Plaintiff, but did not grant such status to Plaintiffs Geraldo
Morales, Vincent R. Sanford, Thomas Flanagan, Ralph Waidron, or David Carson, as these
individuals have not signed the Complaint or submitted IFP applications.
1

who is immune from such relief. For the reasons set forth below, the Court will dismiss the

§

1983 claims for failure to state a claim for relief To the extent his Complaint can be construed
as a motion for class certification, the Court will deny that motion light of the Court’s dismissal
of the

§

1983 claims. The Court will likewise deny the motion forpro bono counsel. (ECF No.

2.) Plaintiff may file an Amended Complaint within 30 days of his receipt of the Court’s
Opinion and accompanying Order.
II.

FACTUAL BACKGROUND
a. The Current Action
Plaintiff has sued Gary Lanigan, Elizabeth Connolly, Sherry Yates, James Slaughter,

Merrill Main, Heather Burnett, as well as unidentified John and Jane Doe Treatment Team
Members, for alleged violations of his constitutional rights in connection with his civil
commitment in the STU. The Complaint provides the following salient facts about Plaintiffs
civil commitment as an SVP:
Plaintiff Terry Traylor was involuntarily civilly committed
pursuant to the (SVPA) on or about May 31, 2002 by the Superior
Court of Essex County, Newark, NJ. Terry Traylor has not
consented to participate in any mental health treatment program
provided by (DHS). Terry Traylor is appealing his commitment
order and has refused treatment or to participate in any test
administered by the Defendants. Nevertheless, due to the systemic
deficiencies in the (SVP) program described [in the Complaint].
Resident Terry Traylor has never received adequate counseling or
treatment that might yield a realistic chance for his release.
(Id. at ¶ 6(C).)
As explained below, Plaintiff’s Complaint alleges three primary types of constitutional
violations: (1) allegations regarding alleged deficiencies in the mental health care provided to
SVPs; (2) allegations that the conditions at the STU are more restrictive than prison conditions;

2

and (3) an allegation that SVPs (Plaintiff and others similarly situated) have a constitutional right
to refuse sex offender treatment and should not be retaliated against for refusing treatment.
With respect to the first type of claim, the Complaint alleges that this action is brought to
redress “the complete and utter failure of the Defendant’s and those acting under their control or
direction to provide adequate and meaningful mental health treatment to the named Plaintiffs
and all others similarly situated.

.

.

.“

(Id. at ¶ 6(A).) The Complaint describes the following

failures to provide “meaningful mental health treatment”:
(a)
To properly train staff regarding the treatment of sexual
deviance
(b)
To provide a coherent and meaningful individualized
treatment program for each detainee with understandable goals and
a road map showing steps necessary for improvement and release
(c)
To make adequate provisions for the participation of
detainees; family members in rehabilitation efforts, including
permitting family visits with reasonable frequency and allowing
prompt telephone access to detainees in case of family emergency;
(d)
To draft and implement fair and reasonable grievance
procedures and behavioral management plans;
(e)
To afford reasonable opportunities to all residents for
Educational, Religious, Vocational, and recreational activities;
(f)
To cease requiring as a precondition to participation in all
but the most basic treatment offered by (DHS), and therefor[e], as
a predicate to release, that the Plaintiffs and others similarly
situated detainees to admit to comprehensive listing of the real and
imagined of future criminal prosecution for the other crimes in
violation of the Plaintiffs Fifth Amendment right against selfincrimination applies to the States by the Fourteenth Amendment;
and
To institute procedures to guarantee appropriate
(g)
therapist/patient confidentiality.
(Id. at ¶ 6(0).) Plaintiff alleges that instead of providing treatment.

.

.

Defendants erect one

arbitrary barrier after another to prevent Plaintiffs from progressing to the point where the
Treatment Team will recommend their release, including requiring participants in the program to
confess to crimes they did not commit.” (Id. at

¶ 6(Q).)

3

With respect to the conditions of confinement claim, Plaintiff’s Complaint alleges that he
and other SVPs are “held in conditions that are more restrictive than the conditions under which
[they] were confined when they were incarcerated as criminals prior to their civil commitment
under the [SVPAI.” According to Plaintiff’s Complaint, “[t]hese conditions are unrelated to the
security or treatment needs of the SVP population and are purely punitive in nature and continue

to be enforced as retaliatory measures.” (ECF No. 1, Cornpl. at ¶ 6(R).)
The relief section of the Complaint focuses primarily on Plaintiff’s contention that he has
a constitutional right to refuse treatment and should not be retaliated against for refusing to
participate in treatment. Plaintiff asks the Court to rule that Plaintiffs have a [c]onstitutional
2
[r]ight to refuse treatment and not to be punished for exercising that [night.” (Id. at ¶ 7(A).)
Plaintiff also asks the Court to

Order that Resident Terry Traylor and all other similarly
situated are not be denied employment, their property, and
personal needs, etc., for affirming the right not to participate in any
mental health treatment program. And by during [sic] so like all
other similarly situated are denied [j]obs, loss of property, and
being segregated in a housing Unit and not allowed to participate
with other [r]esidents just for affirming a right not to participate.
(Id. at ¶ 7(B).) He further seeks a restraining order/injunction to prevent DHS from using
“Treatment Probation/Treatment Refusal to punish and retaliate when their wishes are not
followed, to the letter” and to prevent retaliation and intimidation by DHS against those
detainees who “affirm the right not to discuss the offenses they are charged with” and refuse to
participate in mental health treatment. (Id. at

¶ 7(C).)

Plaintiff also asks the Court to order DHS

to “develop specific policies” for the treatment of those detainees who are still challenging their

2

In the relief section, Plaintiff also asks the Court to order that the “DOC [p]ersonnel be trained
to act more professionally in a therapeutic environment.” (Id. at ¶ 7(D).)
4

convictions and/or civil commitment, and enjoin DHS from intimidating or bullying a resident
into speaking about his criminal sexual history against the advice of his attorney. (Id. at ¶ 7(F).)
Plaintiff also asks the Court to enjoin the Treatment Team from “classifying any resident as a
Treatment Refuser” if that resident is pursuing an appeal or collateral attack on his conviction, is
not yet committed, and has been advised by the Court or counsel not to discuss his case. (Id. at ¶
7(G).)
b. Plaintiff’s Prior Action
At the beginning of his Complaint, Plaintiff refers to a “previously dismissed federal civil
action,” which is captioned “Edward Salerno, et a/f] v. John Corzine, et al[.]” (ECF No. 1,
Compl. at ¶ 2.) Plaintiff appears to state, however, that the issue or issues presented in the
present action “w[ere] never addressed” in the prior action. (Id.)
On June 13, 2007, Plaintiff Terry Traylor filed a Complaint in this District pursuant to 42
U.S.C.

§ 1983, alleging that his First and Fifih Amendment rights were violated by Defendants

who were involved in his treatment at the STU. Plaintiff alleged that the Defendants attempted
to force him to participate in treatment and make self-incriminating statements. Defendants then
allegedly penalized Plaintiff by revoking his institutional privileges because he refused to
cooperate with Defendants. See Tray/or v. Main, No. CIV.A. 07-CV-275 1 DMC, 2007 WL
4557650, at

(D.N.J. Dec. 17, 2007), rev’d in part and remanded sub nom. Salerno v. Corzine,

449 F. App’x 118 (3d Cir. 2011). The Honorable Dennis M. Cavanaugh, U.S.D.J., screened the
Complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B) and dismissed the Fifih Amendment claim

against compelled self-incrimination but permitted Plaintiff’s First Amendment claims to
proceed. (See Civil Act. No. 07-275 1, ECF No. 3.)

5

The named Defendants in Civil Action No. 07-2751 filed a Motion to Dismiss. Judge
Cavanaugh granted Defendants’ Motion to Dismiss on the basis that the named Defendants were
entitled to qualified immunity because reasonable officials would not consider self-accusatory
sex offender treatment programs to be unconstitutional. Traylor, 2007 WL 4557650 at *2..3. In
a consolidated appeal, the Third Circuit affirmed the dismissal of Traylor’s damages claims, but
reversed the District Court’s orders dismissing Traylor’s

§

3
1983 claims for prospective relief.

Salerno v. Corzine, 449 F. App’x 118, 123 (3d Cir. 2011). The court remanded the cases for
determination of Plaintiffs’ First Amendment claims for prospective relief. Jd.
After the cases were remanded, they were consolidated before the Honorable Faith S.
Hochberg. See Salerno v. Corzine, No. CIV. 06-3547, 2013 WL 5505741, at *2 (D.N.J. Oct. 1,
2013), affd, 577 F. App’x 123 (3d Cir. 2014). Following remand, the parties filed cross-motions
for summary judgment. The District Court summarized the parties’ arguments as follows:
Plaintiffs principally assert that their First Amendment
right against compelled speech is violated because Defendants
require Plaintiffs to discuss their sexual histories and past sex
offenses during the course of group therapy. Plaintiffs continue to
invoke their First Amendment rights in refusing to talk about their
sex lives and sex offense history. As a result of their refusal,
Plaintiffs allege that they have been denied certain privileges or
incentives afforded to other residents who comply with the
treatment program requirements to discuss their sexual histories.
Most significantly, Plaintiffs allege that they have been unable to
advance through the treatment phases, which has increased their
detention indefinitely, as a consequence of their refusal to discuss
their past sexual histories. Plaintiffs contend that these deprivations
of liberty are so great as to rise to the level of compulsion that
violates the First Amendment.
On the other hand, Defendants argue that Plaintiffs’ First
Amendment rights are not infringed by the withholding of certain
privileges for refusing to participate in a program that uses an
“incentive-for-participation system” to foster standard sex offender
treatment. Citing Dr. Main’s professional opinion, Defendants
The consolidated appeal included claims by Traylor, Edward Salerno, and Joseph Aruanno.
6

maintain that “admission to and discussion of all sexual offenses is
critical to successful treatment” of residents at the STU. Dr. Main
opines that incentives to cooperate are necessary to induce an
otherwise ‘treatment-resistant” group to participate in a treatment
program. and that giving treatment “refusers” the same privileges
as treatment participants would undermine the entire treatment
program.
Salerno. 2013 WL 5505741, at *5
The District Court granted summary judgment to the Defendants, which the Third Circuit
summarized as follows:
The District Court granted the Defendants’ motion for summary
judgment. With respect to Salerno and Traylor’s compelled speech
claim, the District Court determined that “[tjhe loss of such
privileges as an institutional job, a DVD player, and a CD player,
for non-participation does not implicate a constitutional
deprivation of liberty so severe as to violate Plaintiffs’ First
Amendment right against compelled speech.” Salerno v. Corzine,
Nos. 06—3547, 07—275 1, 2013 WL 5505741, at *11 (D.N.J. Oct. 1,
2013). Additionally, the District Court concluded that Salerno and
Traylor’s indefinite detention did not amount to compelled speech.
In pertinent part, the District Court explained that the ‘duration of
[Salerno and Traylor’sj detention is determined by the New
Jersey courts,” not by Defendants, and it “is not determined by
whether they exercise their First Amendment right against
compelled speech, but instead by whether they continue to present
a risk of sexually reoffending.” With respect to Salerno and
Traylor’s retaliation claim, the District Court held that Defendants
did not retaliate against Salerno and Traylor because the revoked
privileges were insufficient to “deter a person of ordinary firmness
from exercising his constitutional rights.” Id. (quoting Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir.200l)).
...

Salerno v. Corzine, 577 F. App’x 123, 127 (3d Cir. 2014). The Third Circuit “affirm[ed] the
judgment of the District Court, substantially for the thorough and persuasive reasons expressed
in Judge Hochberg’s written opinion.” Id. at 128. Petitioner’s Petition for writ of certiorari was
denied on January 12, 2015. Salerno v. Corzine, 135 S. Ct. 973 (2015).

7

STANDARD OF REVIEW

III.

Under the Prison Litigation Reform Act of 1995 (the “PLRA”), district courts must
review complaints in those civil actions in which a person is proceeding informapauperis. See
28 U.S.C.

§ 1915(e)(2)(B). As noted above, the PLRA directs district courts to sua sponte

dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. Id. “The
legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.

§

191 5(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v.
Seiverling. 229 F.3d 220, 223 (3d Cir. 2000)); Courteau v. United States, 287 F. App’x 159, 162
(3d Cir. 2008) (discussing 28 U.S.C.

§ 1915A(b)).

Here. Plaintiffs Amended Complaint is subject to screening under 28 U.S.C.

§

1915(e)(2)(B). When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), courts first
separate the factual and legal elements of the claims, and accept all of the well-pleaded facts as
true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 2 10—1 1 (3d Cir. 2009). All reasonable
inferences must be made in the plaintiffs favor. See In re Ins. Brokerage Antitrust Litig., 618
F.3d 300, 314 (3d Cir. 2010). The complaint must also allege “sufficient factual matter” to show
that the claim is facially plausible. Fowler v. UPMSShadyside, 578 F.3d 203, 210 (3d Cir.
2009) (citation omitted). ‘A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(citation omitted).

8

Courts are required to liberally construe pleadings drafted by pro se parties. Tucker v.
HewittPackcird, Inc.. No. 14-4699 (RBKJKMW), 2015 WL 6560645, at *2 (D.N.J. Oct. 29,
2015) (citing Homes v. Kerner, 404 U.S. 519, 520 (1972)). Such pleadings are “held to less
strict standards than formal pleadings drafted by lawyers.” Id. Nevertheless, pro se litigants
must still allege facts, which if taken as true, will suggest the required elements of any claim that
is asserted. Id. (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)). To
do so, [a plaintiff] must plead enough facts, accepted as true. to plausibly suggest entitlement to
relief.” Gibney v. Fitzgibbon, 547 F. App’x 111, 113 (3d Cir. 2013) (citing Bistrian v. Levi, 696
F.3d 352, 365 (3d Cir. 2012)). “Liberal construction does not, however, require the Court to
credit apro se plaintiffs ‘bald assertions’ or ‘legal conclusions.” Id. (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). That is, “[ejven apro se complaint may be
dismissed for failure to state a claim if the allegations set forth by the plaintiff cannot be
construed as supplying facts to support a claim entitling the plaintiff to relief. Id. (citing
Milhouse v. Carison, 652 F.2d 371, 373 (3d Cir. 1981)).
IV.

ANALYSIS
a. Plaintiff’s Attempt to Bring the Action on Behalf of Additional SVPs

Where more than one pro se party seeks to join in a complaint against a government
official or entity, the plaintiffs may prepay a single $400.00 filing fee or seek informapauperis
status. See Hagan v. Rogers, 570 F.3d 146, 150 (3d Cir. 2009); Miller v. New ,Jersey, No. 13—
2018. 2013 WL 2149692, at *2 (D.N.J. May 16, 2013) (citations omitted). In the event that
multiple pro se parties seek to join as plaintiffs and they do not prepay the $400 filing fee, then
each plaintiff must submit a complete application to proceed infornia pauperis if he desires the

9

complaint to be filed on his or her behalf. See Hagan, 570 F.3d at 1 5455;4 Alford v.
Wojchiechowicz, No. CV 15-6750 (PGS), 2015 WL 5771616, at *2 (D.N.J. Sept. 30, 2015)
(explaining same).
Here, Mr. Traylor is the only Plaintiff who has submitted an IFP application. As such, as
noted above, the Court granted his IFP application. Because the remaining Plaintiffs have not
submitted an IFP application or signed the Complaint in this action, the Court will instruct the
Clerk of the Court to terminate the additional Plaintiffs listed in the caption until such time that
they each submit a complete IFP application and sign any Amended Complaint in this action.
b. Plaintiff’s Section 1983 Claims
The Court construes Plaintiff to raise a number of claims under 28 U.S.C.

§

1983 in

connection with his treatment and the conditions of his confinement at the STU, which are set
forth below.
5

In Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009), the Court of Appeals for the Third Circuit
held that prisoners proceeding in forma pauperis are not categorically barred from joining as co
plaintiffs under Rule 20 of the Federal Rules of Civil Procedure. Rule 20(a) provides the
following regarding permissive joinder of Plaintiffs: “(1) Plaintiffs. Persons may join in one
action as plaintiffs if: (A) they assert any right to reliefjointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.”
The requirements prescribed by Rule 20(a) are to be liberally construed in the interest of
convenience and judicial economy. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002). The
Court need not decide whether the requirements for joinder are met, as Traylor is the only
Plaintiff who has submitted an IFP application. Notably, none of the Plaintiffs have signed the
Complaint; however, the Court will construe Plaintiff Traylor’s signature on his IFP application
as his signature on the Complaint.
By way of background, Plaintiff is confined at the STU pursuant to the New Jersey SVPA,
N.J.S.A. 30:4—27.24 et seq., which provides for the custody, care and treatment of involuntarily
committed persons who are deemed to be SVPs. An SVP is defined as a person who has been
convicted of at least one sexually violent offense and who suffers from “a mental abnormality or
personality disorder that makes the person likely to engage in acts of sexual violence if not
confined to a secure facility for control, care and treatment.” Id. Once committed to the STU, an
SVP remains there until such time as a state court finds that he “will not be likely to engage in
acts of sexual violence,” in which case he may be “conditionally discharged.” N.J.S.A. 30:4—
10

1. First and Fifth Amendment Claims

As laid out in the Factual Background section of this Opinion, Plaintiff asks the Court to
declare that he has a constitutional right to refuse sex offender treatment; he further asks the
Court to enjoin Defendants from punishing him for refusing treatment. These First and Fifth
Amendment claims, as raised in the instant Complaint, were the subject of a prior action by
Plaintiff and were litigated to a conclusion in that prior action. Claim preclusion “bars a party
from initiating a second suit against the same adversary based on the same ‘cause of action’ as
the first suit.” Duhaney v. Att’y Gen. of US., 621 F.3d 340, 347 (3d Cir.2010). Claim preclusion
is properly applied where there has been: “(I) a final judgment on the merits in a prior suit
involving; (2) the same parties or their privies; and (3) a subsequent suit based on the same
causes of action.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 260 (3d Cir. 2010). To the
extent Plaintiff alleges in this action that Defendants violated his First and Fifth Amendment
rights by trying to force him to participate in treatment and make self-incriminating statements,
and by revoking his institutional privileges in retaliation for his refusal to participate in
treatment, such claims have already been litigated to a conclusion and are thus barred by the
doctrine of claim preclusion and shall be dismissed with prejudice.
6

27.3 2(c)(l). As explained by another Court in this District, “[ijn order to be “conditionally
discharged,” the individual must establish that he has been successfully treated for the mental
abnormality or personality disorder that was the basis for his confinement to the STU. In order
for residents to have a meaningful opportunity to work toward a potential release, the Act
provides that class members receive mental health treatment, which is provided by the New
Jersey Department of Human Services.” Alves v. Main, No. CIV.A. 01-789 DMC, 2012 WL
6043272, at *12 (D.N.J. Dec. 4,2012) (citing N.J.S.A. 30:4—27.34(b)), affd, 559 F. App’x 15i
(3d Cir. 2014).
6

In this action, Plaintiff alleges that detainees who are still challenging their criminal convictions
or civil commitment should not be penalized for refusing to discuss their alleged crimes, and
suggests that he is still challenging his civil commitment order. In this regard, the Court takes
judicial notice of the following dates taken from Petitioner’s habeas petition filed in this District:
11

2. Fourteenth Amendment Claim of Inadequate Treatment

Plaintiff also appears to assert that Defendants have violated his fundamental right to
minimally adequate treatment as a civilly committed sex offender, which arises under the
Fourteenth Amendment. The Supreme Court has established that there exists a constitutionally
7
protected right of mentally retarded persons confined at a state institution to minimally adequate
treatment. See Youngberg v. Romeo, 457 U.S. 302, 316, 319, 322 (1982). In Learner v. Fauver,
288 F.3d 532 (3d Cir. 2002), the Third Circuit held that, since the New Jersey’s statutory scheme
for sex offenders was predicated on the inmate’s response to treatment, that statutory regime
created a fundamental due process liberty interest in treatment. Id. at 545; accord Kansas v.
Hendricks. 521 U.S. 346, 368—69 (1997) (inmates housed in prison-like conditions must be
afforded a treatment comparable to that provided to other civilly committed persons confined in

On or about February 8, 2002, a final order of commitment was
entered by the Honorable Phillip M. Freedman, J.S.C., against
petitioner Traylor pursuant to N.J.S.A. 30:4-27.24. (Petition, ¶ 30).
Traylor states that he was involuntarily committed on May 31,
2002, to the Special Treatment Unit in Kearny, New Jersey. (Pet..
¶ 35). He appealed from the judgment of commitment, and the
New Jersey Appellate Division affirmed the trial court’s ruling in a
written opinion filed on July 12, 2004. (Pet., ¶ 37). The New Jersey
Supreme Court denied certification on February 28, 2005. (Pet., ¶
38). On or about November 7. 2005, Traylor filed a federal habeas
petition, pursuant to 28 U.S.C. § 2254, challenging the same
judgment of commitment at issue in this action. Traylor v. Harvey,
et al.. Civil No. 05-5986(JAP).
Traylor v. New Jersey, No. CIV.07-1883 WJM, 2007 WL 1303003, at *1 (D.N.J. May 2,2007).
The Fourteenth Amendment guarantees that “[n]o State [would] deprive any person of life,
liberty, or property without due process of law.” U.S. Const., Amend. XIV, § 1. This due process
guarantee has a procedural and a substantive component; the former bars punishment without the
due process of law while the latter protects fundamental rights so “implicit in the concept of
ordered liberty” that “neither liberty nor justice would exist if they were sacrificed.” J’alko v.
Conn., 302 U.S. 319, 325 (1937); see also United States v. Salerno, 481 U.S. 739, 746 (1987)
(substantive due process protects the inmates’ fundamental rights and, in addition, guards the
inmates against other government conduct so egregious that it “shocks the conscience”).
12

treatment units). Thus, under Third Circuit law, Plaintiff has a substantive due process right in a
treatment facilitating his release prospects. See Roberts v. Velez, No. CIV.A. 11-1198 SDW.
2011 WL 2745939, at *8 (D.N.J. July 12, 2011); Miller v. Christie, No. CIV.A. 10-2397 KSH,
2011 WL 941328, at *7 (D.N.J. Mar. 11,2011) (finding that the Third Circuit’s holding in
Learner extends to an involuntarily committed sex offender under New Jerseys SVPA). Under
this standard, however, Defendants’ actions in denying Plaintiff his statutory right to treatment
will be found unconstitutional under the Fourteenth Amendment only if they are so arbitrary or
egregious as to shock the conscience. See Wolfe v. Christie, No. CIV.A. 10-2083 PGS, 2010 WL
2925145, at *14 (D.N.J. July 19, 2010) (citing Learner, 288 F.3d at 546—47 (substantive due
process claim alleging inadequate treatment for committed sex offender ‘must focus on the
challenged abuse of power by officials in denying [the plaintiff] the treatment regimen that was
statutorily mandated and was necessary in order for his condition to improve, and thus for him to
advance toward release”).
Here, Plaintiff’s Complaint provides a generalized list of deficiencies with respect to the
treatment program at the STU. These alleged deficiencies include alleged failures: to train staff
about sexual deviance; to provide meaningful individualized treatment programs with clear
roadmaps for improvement and release; to make adequate provisions for the participation of
detainees in their treatment; to permit frequent visits with family and prompt telephone access
for family emergencies; to implement reasonable grievance procedures and behavioral
management plans; to afford unspecified opportunities for educational, religious, vocational, and
recreational activities; to create procedures to guarantee therapist/patient confidentiality: and to
cease requiring detainees to discuss their prior sexual crimes and sexual histories. (ECF No. 1,
Compl. at ¶ 6(0).) As currently pleaded, these alleged deficiencies are extremely generic, and

13

do not rise to the level of a substantive due process violation, i.e., conscience-shocking conduct.
Plaintiff does not allege that sex offender treatment is denied altogether; nor does he allege that
his prescribed treatment has been denied, reduced, or changed for non-medical reasons. See e.g.,
Thomas v. Adams, 55 F. Supp. 3d 552, 576 (D.N.J. 2014) (“when a prescribed medical treatment
is denied, reduced, or changed for non-medical reasons, including financial, administrative or
logistical, the [denied or reduced] treatment suggests an act of deliberate indifference and
amounts to a violation of

...

substantive due process with regard to those mental patients whose

sole hope for release hinges on obtaining their prescribed” treatment); Cooper v. Sharp, No.
CIV.A. 10-5245 FSH, 2011 WL 1045234, at *15 (D.N.J. Mar. 23, 2011) (dismissing claim for
relief where Plaintiff alleged mere disagreement with treatment program rather than “a
categorical denial of therapy and treatment sessions”); see also Banda v. Adams, No. 16-1582,
2017 WL 76943, at *2 (3d Cir. Jan. 9, 2017) (“No claim of deliberate indifference is made out
where a significant level of care has been provided and all that is shown is that the civil detainee
disagrees with the health care provider’s professional judgment about what constitutes proper
care.”). Notably, Plaintiff acknowledges in his Complaint that he has refused and continues to
refuse the prescribed treatment because his successful participation in the treatment program
8
requires him to discuss his sexual history, including his criminal sexual history.

In that regard, Plaintiff may not recast his First Amendment claim regarding compelled speech
(which he has litigated to its conclusion) as a substantive due process violation. Noting its
“reluctan[ce] to expand the concept of substantive due process,” the Supreme Court has
established the “more-specific-provision rule.” County ofSacramento v. Lewis, 523 U.S. 833,
843—44 (1998). Under this rule, “if a constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the
standard appropriate to that specific provision, not under the rubric of substantive due process.”
United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (clarifying prior holing in Graham v.
Connor, 490 U.S. 386 (1989)); see also Aibright V. Oliver, 510 U.S. 266, 288 (1994) (J. Souter
concurring in the judgment) (describing Court’s “rule of reserving due process for otherwise
homeless substantial claims” and explaining that “the Court has resisted relying on the Due

8

14

Because the facts alleged in the Complaint do not plausibly suggest that Defendants have
violated Plaintiff’s fundamental right to minimally adequate treatment as a civilly committed sex
offender, the Court will dismiss this claim without prejudice.
3. Conditions of Confinement Claim
Plaintiff’s Complaint also alleges that he and other SVPs are “held in conditions that are
more restrictive than the conditions under which [they] were confined when they were
incarcerated as criminals prior to their civil commitment under the [SVPAJ.” According to
9
Plaintiff’s Complaint, “These conditions are unrelated to the security or treatment needs of the
SVP population and are purely punitive in nature and continue to be enforced as retaliatory
measures.” (ECF No. 1, Compl. at ¶ R.) Plaintiff, however, has not, except in the most general
terms, described the conditions of his confinement, i.e., provided facts to suggest that his the
conditions of his confinement as a civil detainee are “more restrictive” than the conditions faced

Process Clause when doing so would have duplicated protection that a more specific
constitutional provision already bestowed”); Betts v. New castle Youth Dev. Ctr., 621 F.3d 249,
260 (3d Cir. 2010) (finding that Plaintiff’s allegations fit squarely within the Eighth
Amendment’s prohibition on cruel and unusual punishment, and holding that the more-specificprovision rule forecloses Betts’s substantive due process claims). Here, Plaintiff has already
litigated his claim that sex offender treatment at the STU violated his First Amendment right
against compelled speech by requiring him to discuss his criminal sexual history. The morespecific-provision-rule prevents his from recasting this claim as substantive due process
violation.
Plaintiff also states in his Complaint that “this action challenges the decision of the Defendants
to ‘Warehouse’ and put out of sight the Plaintiff’s and all others similarly situated in attempt to
hold them indefinitely and to punish, rather than treat their perceived mental disabilities. It is an
Equal Protection Violation.” [T]he purpose of the equal protection clause of the Fourteenth
Amendment is to secure every person within the State’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by express terms of a statute or by its improper
execution through duly constituted agents.” Village of Willowbrook v. Qlech, 528 U.S. 562, 564
(2000) (citing Sioux City Bridge Co. v. Dakota County, NE, 260 U.S. 441, 445 (1923)). Plaintiff
has not provided facts suggesting that Defendants have engaged in arbitrary discriminatory
conduct. To the extent Plaintiff wishes to bring an equal protection claim, he may do so by way
of an Amended Complaint.
“

15

by prisoners. The state has a duty to provide civilly committed persons with adequate food,
shelter, clothing, medical care, and safety measures. See Grohs v. Yatauro, 984 F. Supp. 2d 273,
283 (D.N.J. 2013). Furthermore, the Fourteenth Amendment requires that civilly committed
persons not be subjected to conditions that amount to punishment, Bell v, Wolfish, 441 U.S. 520,
536 (1979); as such, “[p]ersons who have been involuntarily committed are entitled to more
considerate treatment and conditions of confinement than criminals whose conditions of
confinement are designed to punish.” See Youngberg, 457 U.S. at 32 1—22; see also Graham v.
Sharp, No. CTV.A. 10-5563 SRC, 2011 WL 2491347, at *8 (D.N.J. June 20, 2011) (stating
same). Plaintiff, however, fails to set forth sufficient facts in his Complaint to state a conditions
of confinement claim against any of the Defendants. The Court will therefore dismiss this claim
without prejudice.
4. Leave to Amend

A district court generally grants leave to correct deficiencies in a complaint by
amendment. See DelRio-Mocci v. Connolly Properties Inc., 672 F.3d 241, 251 (3d Cir. 2012);
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Because it is conceivable that Plaintiff may
be able to assert facts showing that his constitutional rights were violated, this Court will grant
Plaintiff 30 days to file an amended complaint that (1) is complete on its face and (2) asserts
facts showing that one or more named defendant(s) violated or caused the violation of his
constitutional rights)
0

Because the Court has dismissed the federal claims, the remaining potential basis for this
Court’s jurisdiction over any state law claims is supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367. “Supplemental jurisdiction allows federal courts to hear and decide state-law claims
along with federal-law claims when they are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy.” Wisconsin Dept. of
Corrections v. Schacht, 524 U.S. 381, 387 (1998) (citation and internal quotation marks
omitted). Where a district court has original jurisdiction pursuant to 28 U.S.C. § 1331 over
16

5. Requests for Class Certification and Pro Bono Counsel

Because the Court has dismissed the

§ 1983 claims, the Court will deny Plaintiff’s

request for class certification and his motion for pro bono counsel (ECF No. 3) at this time. To
the extent he submits an Amended Complaint, Plaintiff may file new motions for class
certification and pro bono counsel, if appropriate.
V.

CONCLUSION

For the reasons stated in this Opinion, the Court dismisses the
28 U.S.C. 1915(e)(2)(B). In light of the dismissal of the

§ 1983 claims pursuant to

§ 1983 claims, the Court also denies

Plaintiffs request for class certification and his motion for pro bono counsel (ECF No. 3.). With
respect to the claims dismissed without prejudice, Plaintiff may file an Amended Complaint
within 30 days of the date of the Order accompanying this Opinion. An appropriate Order
follows.

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

—,

17

federal claims and supplemental jurisdiction over state claims pursuant to 28 U.S.C. § 1367(a),
the district court has discretion to decline to exercise supplemental jurisdiction if it has dismissed
all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); Growth Horizons, inc.
v. Delaware County, Pennsylvania. 983 F.2d 1277. 1284—1285 (3d Cir. 1993). In exercising its
discretion, “the district court should take into account generally accepted principles of ‘judicial
economy, convenience, and fairness to the litigants.” Growth Horizons, Inc., 983 F.2d at 1284
(quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). Where the federal claims
are dismissed at an early stage in the litigation, courts generally decline to exercise supplemental
jurisdiction over state claims. United Mine Workers, 383 U.S. at 726; Growth Horizons, Inc.,
983 F.2d at 1284—1285. Here, it is not clear whether Plaintiff also seeks to bring state law claims
for relief; the Court however, has dismissed the federal claims at the earliest possible stage of the
proceedings and exercises its discretion to decline supplemental jurisdiction at this time.
17