Joseph Aruanno v. John/Jane Does 1-10

ELD-034 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1451
___________
JOSEPH ARUANNO,
Appellant
v.
JOHN/JANE DOES 1-10, et al.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2:12-cv-07694)
District Judge: Honorable William J. Martini
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
on August 5, 2013
Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed August 23, 2013)
_________
OPINION
_________
PER CURIAM
Pro se Appellant Joseph Aruanno appeals from the order of the United States
District Court for the District of New Jersey dismissing his civil rights action for failure
to state a claim. We will affirm the District Court’s judgment.
I.
Aruanno is confined at the Special Treatment Unit (STU) in Avenel, New Jersey.
Convicted sex offenders confined at the STU are required to participate in treatment
sessions during which they are told to disclose their past, sexually violent behavior to
other group members. Aruanno refuses to participate in these sessions, because he argues
that he is being compelled to confess to crimes that he has not committed. Since he has
refused to reveal his sexual history during these therapy sessions, certain privileges have
been withheld, such as his job.
Aruanno filed the present civil rights complaint against ten John/Jane Does. He
asserts that the Defendants have denied him an STU job in retaliation for exercising his
constitutional rights “to remain silent and not participate under the 1st, 5th and 14th
Amendments, but not limited to, as well as The Law Against Discrimination; The
American with Disabilities Act; The Rehabilitation Act; etc. . . .” (Complaint, Parties.)
This is Aruanno’s fourth attempt to raise such claims before the Court. In Aruanno v.
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Spagnuolo, No. 07-2056 (DMC), 2007 WL 3026837 (D.N.J. Oct. 15, 2007), Aruanno
asserted the same claims he asserts here, namely that the defendants withheld privileges,
such as a job, in retaliation for his refusal to reveal his sexually violent past behavior
during treatment sessions for convicted sex offenders, in violation of his First and Fifth
Amendment rights. That complaint was dismissed, and we affirmed, holding that
Aruanno’s claim cannot succeed because of his failure to demonstrate that the deprivation
of a job constituted “compulsion” to speak that triggered First and Fifth Amendment
protections. See Aruanno v. Spagnuolo, 292 F. App'x 184, 186-187 (3d Cir. 2008)
(citing McKune v. Lile, 536 U.S. 24 (2002)).
The same allegations were raised and dismissed under the doctrine of claim
preclusion in Aruanno v. Sweeney, No. 08-4449 (SDW), 2009 WL 1561416 (D.N.J. June
1, 2009). The appeal was consolidated with Salerno v. Corzine, C.A. No. 07-3357, and
Traylor v. Main, C.A. No. 08-1019. See Salerno v. Corzine, 449 F. App'x 118 (3d Cir.
2011). Salerno and Traylor were also confined in the STU and refused to participate in
therapy. As a result, they were deprived of employment and certain other benefits. See
Salerno v. Corzine, No. 06-3547, 2007 WL 2159611 (D.N.J. July 25, 2007); Traylor v.
Main, No. 07-CV-2751(DMC), 2007 WL 4557650 (D.N.J. Dec. 17, 2007). Like
Aruanno, they filed complaints under 42 U.S.C. § 1983 alleging that they were retaliated
against in violation of their First Amendment rights. The District Court dismissed
Salerno’s and Traylor’s claims, on the basis of qualified immunity. Id. On appeal, we
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affirmed the District Court’s dismissal of Aruanno’s claims, but we held that the District
Court erred in applying qualified immunity to bar Salerno’s and Traylor’s claims for
prospective relief and remanded their claims to the District Court for further proceedings.
See Salerno, 449 F. App'x at 123.
Most recently in Aruanno v. Velez, No. 12-0152 (WJM), 2012 WL 1232415(D.N.J. Apr. 12, 2012), Aruanno again claimed that he was denied a job and other
benefits in retaliation for exercising his right to remain silent. The District Court
dismissed the complaint under the doctrine of claim preclusion. Id. On appeal, we
concluded that his complaint failed to state a claim and we did not reach the question of
whether claim preclusion applies. See Aruanno v. Velez, 500 F. App’x. 126, 128 (3d Cir.
2012). We rejected Aruanno’s contention that his case should be remanded for
consolidation with the Salerno case. Id.Here, Aruanno again asks that his case to be consolidated with Salerno. The
District Court granted Aruanno’s in forma pauperis application and screened the
complaint for dismissal under section 1915(e)(2)(B). The District Court concluded that
Aruanno’s claims are barred by claim preclusion and that they failed to state a claim for
violation of Aruanno’s constitutional rights. This appeal followed. The parties were
advised that the appeal would be submitted for possible summary action. Aruanno has
filed a response in support of his appeal and a motion for appointment of counsel.
II.
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We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s sua sponte dismissal under section 1915(e)(2)(B)(ii).
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may affirm the District Court
on any ground supported by the record. See OSS Nokalva, Inc. v. European Space
Agency, 617 F.3d 756, 761 (3d Cir. 2010).
III.
In his complaint, Aruanno contends that the Court has incorrectly decided his
three previous related cases and that “this court has an obligation to correct itself…”
(Complaint, Statement of Claims p. A) We agree with the District Court that, to the
extent that Aruanno is dissatisfied with our decisions, the proper recourse was for him to
ask the United States Supreme Court to grant certiorari, which he did not do.
In any event, we reiterate our prior holdings that the allegations in Aruanno’s
complaint fail to state a claim because denial of a prison job for failure to admit to the
crime for which he is confined does not amount to a “compulsion” to speak in violation
of the First and Fifth Amendments. See Spagnuolo, 292 F. App'x at 186-187; Velez, 500
F. App’x. at 128. Because the conduct leading to the alleged retaliation is not within the
scope of constitutional protections, Aruanno cannot prevail on his retaliation claim. Id.;
See also Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (“prisoner-plaintiff in a
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retaliation case must prove that the conduct which led to the alleged retaliation was
constitutionally protected”).1
IV.
We conclude that the District Court did not err in dismissing Aruanno’s complaint
for failure to state a claim.2 Accordingly, because this appeal presents no substantial
question, we will summarily affirm the judgment of the District Court. See Third Circuit
LAR 27.4 and I.O.P. 10.6. We deny Aruanno’s motion for appointment of counsel.
1
As we previously explained, there is no basis to remand Aruanno’s case for
consolidation with the Salerno case. See Velez, 500 Fed. Appx. at 128 n. 1.
2
To the extent that Aruanno has alleged claims under the” Law Against Discrimination,
the Americans with Disabilities Act, and the Rehabilitation Act,” the complaint fails to
state a cause of action and was properly dismissed.
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