Leamer v. Fauver, 98-6007.

• Decision Date: 19 April 2002
• Docket Number: No. 98-6007.,98-6007.
• Citation: 288 F.3d 532
• Parties: Charles A. LEAMER, Jr., Appellant, v. William H. FAUVER; William F. Plantier; Scott Faunce; Deborah Faunce; Essie Williams; Michael Mancuso; William Blake; Charles Anderson; Brian Marsh; Waymon Benton; Linda Gorman; Pat Deming; Joseph Reiher; Wayne Sager; Donna Klipper; George Blaskewicz; Michelle M. Levi; Dorthy Ward; Lawrence Turek; Jeffrey Allen; Nancy Graffin, individually and in their official capacities; Grace Rogers.
• Court: U.S. Court of Appeals — Third Circuit

288 F.3d 532

Charles A. LEAMER, Jr., Appellant, v. William H. FAUVER; William F. Plantier; Scott Faunce; Deborah Faunce; Essie Williams; Michael Mancuso; William Blake; Charles Anderson; Brian Marsh; Waymon Benton; Linda Gorman; Pat Deming; Joseph Reiher; Wayne Sager; Donna Klipper; George Blaskewicz; Michelle M. Levi; Dorthy Ward; Lawrence Turek; Jeffrey Allen; Nancy Graffin, individually and in their official capacities; Grace Rogers.

No. 98-6007.

United States Court of Appeals, Third Circuit.

Argued November 9, 2001.

Filed April 19, 2002.

COPYRIGHT MATERIAL OMITTED

James A. Plaisted (Argued), Walder, Sondak & Brogan, Roseland, NJ, for Appellant.

Lisa A. Puglisi (Argued), Office of Attorney General of New Jersey, Division of Law, Trenton, NJ, for Appellees.

Before McKEE, RENDELL and STAPLETON, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

In 1978 Charles Leamer was sentenced under a since-repealed provision of the New Jersey statutes to an indeterminate term of up to 42 years at an Adult Diagnostic and Treatment Center in Avenel, New Jersey. He had pled guilty to a charge of rape and a separate charge of assault with intent to rape. Under the terms of his sentence, he was to receive "specialized treatment for his mental and physical aberrations" and be released only when he "is capable of making an acceptable social adjustment in the community." On February 18, 1993, Leamer was shifted to a Restricted Activities Program ("RAP"). His claims arise from his placement and maintenance on RAP status, and from the consequences that attended that placement. Leamer filed a complaint alleging violations of 42 U.S.C. § 1983 in October 1995. At that time, he was still on RAP status. He was removed from RAP status on August 14, 1996. The District Court dismissed his complaint pursuant to Federal Rules of Civil Procedure 12(c) on January 30, 1998.

I. Jurisdiction and Standard of Review

The District Court had jurisdiction of Leamer's 42 U.S.C. § 1983 claim based on 28 U.S.C. § 1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, because the District Court granted the Motion to Dismiss pursuant to Rule 12(c). Our review of a grant of a Motion to Dismiss under Rule 12(c) is plenary, and, as with reviewing the grant of a Motion to Dismiss under 12(b)(6), we view the facts alleged in the pleadings and the inferences to be drawn from those facts in the light most favorable to the plaintiff, and judgment should not have been granted unless the moving party has established that there is no material issue of fact to resolve, and that it is entitled to judgment in its favor as a matter of law. Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir.1988).

II. Statement of Facts

Leamer was incarcerated at Avenel on May 8, 1978. Pursuant to the provisions of 2A: 164-3, et seq., he received regular and intensive therapy, including both group and individual therapy. He served as a therapy clerk, earning $2.75 per day. On February 18, 1993, Leamer was placed in the Close Custody Unit, on RAP status. The following day, he was provided with a form stating that he had been assigned to the Close Custody Unit because of his "exhibition or indication of unstable mental or physical behavior which suggests probable harm to inmate, to others, or to property."¹ He was brought before the Institutional Classification Committee ("ICC") and informed that he had been placed on cell RAP for "attempting to hire a hitman." He was also informed that after he was placed on RAP status, personnel searching his cell had found a letter that had been addressed (but never sent) to Dr. Catherine Blandford, one of Leamer's therapists. Despite Leamer's attempts to deny any wrongdoing, he was told he would be maintained on RAP status "pending further investigation." As a result of his placement on RAP, his job assignment was changed, his earnings dropped to $1.30 per day, and he was denied outside recreation and other freedoms within the institution. During the next 3 years, Leamer was maintained on RAP status, though sometimes confined to his cell and sometimes to his wing. According to his complaint, Leamer's status was reviewed regularly, but he was not present at the reviews except on a few occasions.² Fur Leamer alleges that the written statements of the reviews that were provided to him did not specify the basis for the decisions, did not include any of the reports upon which at least some of the decisions were purportedly based, and did not provide him an opportunity to respond. In February 1994, Leamer was shifted to Phase I, a status usually reserved for new inmates, because of "poor institutional adjustment." Phase I status allegedly precludes the obtaining of higher-paying institutional jobs, participating in the parole release process, participating in certain educational and recreational programs, and achieving "gang or full minimum custody status."

Although the March 1993 review stated that Leamer would be permitted to attend group therapy "as arranged by his therapist," Leamer alleges that he was not able to attend group therapy. In May 1993, he was assigned to self-directed "writing therapy" which precluded any group or individual therapeutic contact. After protests, he was told that he could attend group therapy "as arranged by a therapist," but only with a two-officer escort. In his Complaint, Leamer cites eleven separate appeals and protests that he directed to the Superintendent and/or the Director of Psychology, asking that his therapy be reinstated or that arrangements be made to allow him to attend group therapy. He identifies only two occasions on which escorts enabled him to attend a required therapeutic group that had sixteen scheduled sessions, and identifies another group to which he was assigned but never escorted.

Pervading Leamer's thirty-six page pro se Complaint is a profound sense of frustration at being assigned to and maintained on RAP status and eventually on Phase I status for failing to progress in therapy — yet being unable to attend therapy as a consequence of that status. He also expresses frustration with the deprivations attendant upon and the perfunctory "reviews" of his status. For example, Leamer describes a hunger strike that he began on November 24, 1993. When Wayne Sager, a therapist who was Director of Psychology for some of the period at issue, inquired as to why he had undertaken the hunger strike, Leamer replied that it was "due to the consistent negative responses from staff members to Plaintiff's many requests of Defendant Turek [also a therapist] to have Plaintiff called to group, to have access to Defendant Turek, and to thereby communicate with Turek. Plaintiff informed Sager that he would continue a hunger strike until he (Plaintiff) was provided with regular access to a therapist." Sager's response allegedly was to advise Leamer to bring the issue up in the group sessions that he was complaining about being unable to attend and resolve it "through the normal therapeutic process." As Leamer stated, "Plaintiff was at a loss as to how to handle the matter through the regular therapeutic process when Defendant Turek would neither make arrangements to have Plaintiff escorted to group nor would meet or converse with Plaintiff." In February 1994, at a review Leamer was not allowed to attend, he was demoted "to Phase I status due to poor institutional adjustment." In March 1994, noting another review at which he was not present that merely confirmed his continued status, Leamer comments: "The ICC makes reference to a therapist's report. First, the Plaintiff neither saw nor communicated with his therapist, or any other therapist, prior to the submission of such report and, second, Plaintiff was not given the content of the report, not even summarily, thereby precluding Plaintiff from rebutting, refuting, or even utilizing such reported information to enable him to gain release from RAP." Again in August 1994, without Leamer's being present, a semi-annual review concluded that Leamer needed to remain in Phase I due to "insufficient progress in therapy." Leamer complains: "By Plaintiff not being provided with the escort to bring Plaintiff to his therapy sessions and Defendant Turek neither seeing nor communicating with Plaintiff, Plaintiff is thereby prevented from progressing in therapy, prevented from obtaining a higher phase, prevented from obtaining release from RAP, and prevented, thereby, from ever reaching the point of eligibility for parole."

There are several points in the complaint where Leamer addresses therapy alone, or in conjunction solely with the removal from RAP status, but there are also several places in the complaint when Leamer speaks of parole, though always as a possibility foreclosed by his continued lack of therapy. For instance, he avers: "The only possible way for a 2A inmate, such as Plaintiff, to obtain the possibility of parole is to be provided with treatment to which he is mandated by law to receive." And again, "Plaintiff, by being denied access to the group is further impeded from proceeding in the parole release process." "Plaintiff, by being denied access to the group to complete the course is further impeded from proceeding in the parole release process." This theme is repeated throughout his pleading. In his request for declaratory relief, Leamer asks that we declare the refusal to provide him with treatment contrary to the United States and New Jersey Constitutions and New Jersey state law, but says nothing whatsoever about parole or release from confinement. Again, in his request for injunctive relief, he asks that the defendants be ordered to "refrain from denying Plaintiff his mandated treatment and requisite parole eligibility therefrom."

Leamer has sued William H. Fauver, Commissioner of the New Jersey Department of Corrections, and twenty-one present and former employees of the Avenel Adult Diagnostic and...