Salerno v. Corzine
| Decision Date | 01 October 2013 |
| Docket Number | Civil Case No. 06-3547,Civil Case No. 07-2751 |
| Parties | EDWARD SALERNO, Plaintiff, v. JON CORZINE et al., Defendants. TERRY TRAYLOR, Plaintiff, v. MERRILL MAIN et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
OPINION
Plaintiffs, Edward Salerno and Terry Traylor, are civilly confined at the Special Treatment Unit ("STU") in New Jersey pursuant to the New Jersey Sexually Violent Predators Act ("SVPA" or "the Act"), N.J.S.A. 30:4-27.24, et seq. As part of the program of treatment at the STU, residents are offered therapy programming in which they are encouraged to discuss their sexual histories and past sexual offenses. Residents who do not participate in therapy are denied certain privileges. Plaintiffs both allege that the conditioning of privileges on treatment violates their rights under the First Amendment. Defendants are various officials involved in thetreatment and confinement of Plaintiffs at the STU. This matter comes before the Court upon the Summary Judgment Motion filed by Defendants [Dkt. No. 66] and the Cross-Motion for Summary Judgment filed by Plaintiffs [Dkt. No. 72]. The Court held oral argument on this matter on September 17, 2013.
In 2006, Mr. Salerno filed a pro se Complaint with this Court. That Complaint alleged that the named Defendants were "making threats to force plaintiff to give compelling self-incriminating statements," while in treatment at the STU through "the unlawful taking of personal property, denying the right to commissary and packages, and the taking away of institutional job." This Court interpreted the claims as alleging that the named Defendants violated his First and Fifth Amendment rights. It sua sponte dismissed Salerno's Fifth Amendment claim, and allowed the First Amendment claim to proceed. The named Defendants then filed a Motion to Dismiss, or in the alternative, for Summary Judgment. This Court treated the Motion as one for Summary Judgment. It granted judgment for all Defendants, finding that they were entitled to qualified immunity as "[t]here is no First Amendment right as applied in this case that is clearly established."
Mr. Traylor also filed a pro se Complaint in this district in 2007. Traylor's Complaint was based on the allegation that his First Amendment rights were violated because he was being forced to participate in treatment at the STU, and that he had been penalized for exercising his constitutional rights. The named Defendants in Traylor's case filed a Motion to Dismiss. The Honorable Dennis M. Cavanaugh, U.S.D.J., granted Defendants' Motion to Dismiss, on the basis that the named Defendants were entitled to qualified immunity because reasonable officialswould not consider self-accusatory sex offender treatment programs to be unconstitutional.
Both Plaintiffs filed an appeal from the District Court rulings. On appeal, the cases were consolidated.1 In an Opinion filed on November 17, 2011, the United States Court of Appeals for the Third Circuit reversed in part and affirmed in part the judgment of the District Court on these cases. The Third Circuit affirmed the dismissal of Plaintiffs' damages claims under the doctrine of qualified immunity. However, the panel found that Salerno and Traylor had both brought claims for prospective relief, and that the District erred by granting qualified immunity to the named Defendants on those claims.2 The Circuit "reversed[d] the District Court's orders dismissing Salerno's and Traylor's § 1983 claims for prospective relief [and] remand[e]d their claims to the District Court for further proceedings consistent with this opinion." Salerno v. Corzine, et al., 449 F. App'x 118, 123 (3d Cir. 2011).
After the cases were remanded, they were consolidated before this Court. Plaintiffs moved for leave to amend their Complaints. The Magistrate Judge denied the Motion, on the basis that amending the Complaints would be beyond the mandate set forth by the Third Circuit. Plaintiffs appealed to this Court, which affirmed the ruling of the Magistrate Judge. The pending Motion and Cross-Motion for Summary Judgment followed. The Court then held oral argument.
The SVPA provides for the civil commitment of "sexually violent predators who pose a danger to others should they be returned to society." N.J.S.A. 30:4-27.25. The Act defines "sexually violent predators" as:
Treatment for residents at the STU is provided by the Division of Mental Health Services in the New Jersey Department of Human Services. Treatment is directly provided through "Treatment Teams" for each resident. The residents of the STU are subject to certain rules, many of which are described by the Residents' Guide to the STU, June 30 2006 Revision. The Guide lists five phases of treatment, and describes them as follows. Phase I, "Orientation," is designed to familiarize residents with the STU, and the program of treatment, as well as to address the possible traumatic effects of involuntary commitment. Phase II, "Rapport Building," encourages residents to recognize the need for changes in their behavior and attitudes. Phase III, "Core/Intensive," is designed to ensure residents develop "greater stability in behavior, improvedtolerance for frustration, more pro-social behaviors, sounder affect management, and additional methods to control deviant sexual arousal." Phase IV, "Advanced/Honor," aims to ensure residents apply the lessons they have learned in earlier stages on a consistent basis. In Phase V, "Transition," residents earn greater privileges which may include unsupervised trips out of the grounds of the STU.
As residents progress through the phases, they are expected to discuss their sexual history and past sexual offenses. For example, in Phase 2, the resident must complete a "written, moderately detailed, rendition of the events surrounding at least one sexual offense" before moving to Phase 3. In Phase 3, the resident must "document[] and orally present[] a sexual offense history." Residents who "refuse to participate in treatment in a meaningful way," including refusing to "discuss significant topics," are put on "Treatment Probation." Residents who do not improve their participation in treatment are put on "Treatment Refusal status."
The STU distinguishes between "rights" and "privileges" that are available to residents. "Rights" include a radio, bedding, clothing, laundry, laundry soap, soap for bathing, a toothbrush, stamps, a television, and writing supplies. By contrast, institutional jobs, deodorant, earphones, audio equipment, clocks, and word processors are considered to be "privileges." Residents who are on "Treatment Refusal Status" are denied privileges. According to the Residents' Guide, this denial of privileges is intended to motivate participation in treatment. As an inducement to reconsider their decision not to participate, treatment refusers are offered the opportunity for two hours a week of paid institutional work if they attend a treatment orientation process group once a week for ninety minutes. This process group offers general mental health and wellness treatment rather than sex offender specific treatment. There have been instances where those who refused treatment for years "suddenly turn[ed] around" and began participating.Those who do participate in treatment are offered one hour a day of paid work, five days a week, which increases by one hour a day as they progress through the phases of treatment.
Mr. Salerno completed his maximum criminal sentence in 2001. He was civilly committed under the SVPA, and has been a resident in the STU since completing his criminal sentence. He is now sixty-nine years old. Mr. Traylor, who is fifty-seven, is also civilly committed under the SVPA, and has been a resident at the STU since completing his maximum criminal sentence in 2002.
Both Salerno and Traylor are deemed to be "treatment refusers" by the officials at the STU. Both men have submitted affidavits that since they were committed to the STU, they have "declined" to participate in treatment sessions, and they refuse to discuss the crimes that led to their civil commitment or their sex lives. As a result of his treatment refusal status, Traylor has been denied a video game system, video games, a CD player, CDs, a cassette player, cassettes, a DVD player, DVDs, and an institutional job. Salerno has also been denied the same entertainment devices as Traylor. However, unlike Traylor, Salerno attends a Treatment Orientation group. As a result, Salerno is able to work at an institutional job for two hours a week, for a wage of $ 7.25 per hour. Both Plaintiffs remain in "Phase One" of the treatment program as a result of their refusal to participate in treatment.
Merrill Main, the STU Clinical Director, has testified that a resident refusal to participate in treatment negatively affects the "treatment milieu" at the STU because it encourages others to refuse treatment and affects the quality of participation of those who are engaging in the treatment process. Dr. Main also testified that neither Salerno nor Traylor pose a...
To continue reading
Request your trial