United States District Court, D. New Jersey
matter is before the Court upon Defendants Elizabeth
Connolly, John Main, Jonathan Poag, Jennifer Velez, Valerie
Mielke, Shantay Adams, Jackie Ottino and Gary Lanigan's
(collectively, “Defendants”) respective Motions
to Dismiss Plaintiffs Ronald Nash and Thaddeus Thomas's
(“Plaintiffs”) Second Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6). (D.E. Nos. 54, 55,
Defendants' Motions to Dismiss). Plaintiffs filed Opposition
(D.E. No. 59) and Defendants Connolly, Main, Poag, Velez,
Mielke, Adams and Ottino filed a Reply (D.E. No. 60).
case has a lengthy history, with which the parties are
familiar, and the Court will not recount it at length here.
Suffice it to say, this case involves challenges to the
transfer of civilly committed sexually violent predators
(“SVPs”) confined under the New Jersey Sexually
Violent Predator Act (“NJSVPA”), N.J. Stat.
Ann.§ 30:4-27.24, from a facility in Kearny, New Jersey
to the Special Treatment Unit (“STU”) of the East
Jersey State Prison (“EJSP”). Plaintiffs, both
SVPs, filed complaints challenging this transfer and the
resulting changes to their treatment, as well as various
other issues. In 2014, the Hon. Dickinson R. Debevoise,
U.S.D.J., to whom these cases were originally assigned,
entered an opinion and order granting in part and denying in
part Defendants' Motion to Dismiss Plaintiffs' First
Amended Complaint (“FAC”). (D.E. Nos. 35, 36,
October 20, 2014 Opinion and Order).
his October 20th Opinion, Judge Debevoise dismissed
“all Plaintiffs' claims asserting overall
insufficiency of the mental treatment provided to all civilly
committed sexually violent predators confined at the Special
Treatment Unit of the East Jersey State Prison” with
prejudice. (Id.). He dismissed all claims against
then Attorney General Paula T. Dow with prejudice and the
claims against Governor Chris Christie without prejudice.
(Id.). He also dismissed “Plaintiffs'
claims asserting that Plaintiffs' mental treatment at the
Special Treatment Unit of the East Jersey State Prison is/was
administered by social workers and/or recreation staff,
rather than by psychiatrists/psychologists” without
prejudice. (Id.). Lastly, Judge Debevoise denied
Defendants' motion “as to Plaintiffs' claims
against Defendants Gary M. Lanigan, Jennifer Velez, John
Main, Jonathan Poag, Merrill Main, Shantay Braim Adams and
Jackie Ottino to the extent Plaintiffs assert that these
Defendants made systemwide decisions that produced the
operational regime within at the Special Treatment Unit of
the East Jersey State Prison, which caused the subordinate
officers to deny and/or reduce and/or change Plaintiffs'
prescribed mental treatment for non-medical reasons.”
Defendants Lanigan, Velez, Main, Poag, Main, Adams, and
Ottino filed an appeal, challenging the district court's
denial of qualified immunity. (D.E. No. 37). The Third
Circuit affirmed Judge Debevoise's decision, finding that
the District Court properly denied qualified immunity.
Thomas v. Christie, 655 F. App'x 82 (3d Cir.
2016). Specifically, the court stated that:
Thomas and Nash have pleaded that each official's
“own decisions and acts” causally connected
Appellants to the reduction or elimination of prescribed
treatment. Towards this end, they state each Appellant's
job title within the Department of Corrections and Department
of Human Services, and they specify the particular types of
policy decision and rulemaking responsibilities each had that
was relevant to the housing and care of Thomas and Nash.
Moreover, the pleadings focus upon disruptions in treatment
occurring after Thomas and Nash were transferred from the
Kearney facility to the East Jersey State Prison,
inextricably intertwining the constitutional violation claims
about treatment disruptions with policy decisions concerning
The District Court's review of the complaints highlights
the rather unique alignment between the specific right at
issue and the particular decision-making responsibilities of
each Appellant that enabled it to reach a conclusion about
whether the right was clearly established. The District Court
noted that Thomas and Nash were pleading that a subset of the
decisions these officials made were at issue-those related to
the movement of the sexually violent predator program from
Kearney to East Jersey State Prison. It said “the
decisions and acts at issue, by their very nature, could not
have possibly escaped the scope of the DOC defendants'
personal responsibilities.” Given the alignment between
the distinct scope of decisions at issue and Appellants'
job responsibilities, this is a reasonable inference.
Id. at 85-86 (3d Cir. 2016) (citations to the record
omitted). The Court of Appeals further agreed with the
district court's determination that the vested liberty
interest at issue was “well defined” and found
that it was “reasonable for the District Court to
conclude that Appellants had ‘fair warning' of the
constitutional implications of any decision foreseeably
resulting in ‘denying, reducing or changing
Plaintiffs' prescribed mental treatment for non-medical
reasons.'” Id. at 86.
return to the district court, this matter was reassigned to
the Undersigned. (D.E. No. 45). The Hon. Michael A. Hammer,
U.S.M.J., allowed Plaintiffs to file a second amended
complaint (D.E. No. 46) and, on March 8, 2017, Plaintiffs
filed the Second Amended Complaint (D.E. No. 49, Second
Amended Complaint (“SAC”)).
Defendants thereafter filed separate Motions to Dismiss.
(D.E. Nos. 54, 55). In their Motion to Dismiss, Defendants
Connolly, Main, Poag, Velez, Mielke, Adams and Ottino, who
are current or former Department of Human Services employees,
argue that the SAC fails to state a claim against them and
must be dismissed. Specifically, Defendants Connolly, J.
Main, Poag, and Velez argue that because they are sued in
their capacity as policy-makers, and because the
“Second Amended Complaint acknowledges that [the
decision to transfer the STU from Kearny to East Jersey State
Prison] was made by DOC, rather than DHS Defendants, ”
Plaintiffs fail to state a claim against them. (D.E. No.
54-1, DHS Defendants' Brief in Support of Motion to
Dismiss (“DHS Br.”) 7). Defendants Connolly, J.
Main, Poag, and Velez further argue that the SAC does not
allege that they were involved in any treatment decisions for
Plaintiffs and therefore that claim must also be dismissed
against them. (Id.).
Court will deny Defendants' Motion. As stated by the
Plaintiffs in Opposition, the SAC essentially re-states the
facts alleged in the FAC, which has already been determined
to sufficiently state a claim by both Judge Debevoise and the
Third Circuit. Defendants Connolly, J. Main, Poag, and Velez
argue that the inclusion of certain additional facts in the
SAC make it clear that the Department of Corrections was
responsible for the transfer, not DHS. However, the inclusion
of facts from the state court's opinion in County of
Hudson v. State Department of Corrections, No.
A-2552-07T1, 2009 WL 1361546 ( N.J.Super.Ct.App.Div. May 18,
2009), which lays out the history leading to the decision to
move the SVPs to EJSP, does not change the overall
allegations against the Defendants. Looking at the facts as a
whole, the SAC, as did the FAC, alleges that all Defendants
were in some way involved in the transfer and resulting
reduction in prescribed treatment. (See Oct. 20th
Opinion, n. 34) (“The parties' focus on
Defendants' decision to transfer the SVPs, not
on the changes in Plaintiffs' prescribed medical
care is unfortunate”) (emphasis in original). Judge
Debevoise found the allegations sufficient and this Court
does not find that the additional facts alter his
Similarly, Defendants Connolly, J. Main, Poag, and
Velez's argument that the SAC does not allege that they
played any role in the treatment decisions for Plaintiffs is
also without merit. The descriptions of the roles of these
Defendants in the SAC is nearly identical to ones contained
in the FAC. (SAC ¶¶ 8; 9; 14; 15; FAC ¶¶
11-13). As stated above, the Third Circuit referred to these
descriptions when affirming Judge Debevoise. See
Thomas, 655 F. App'x at 85- 86 (“Towards this
end, they state each Appellant's job title within the
Department of Corrections and Department of Human Services,
and they specify the particular types of policy decision and
rulemaking responsibilities each had that was relevant to the
housing and care of Thomas and Nash”). Because the
District Court and Third Circuit have previously found that
Plaintiffs adequately pled that each of these Defendants'
own actions causally connected them to the reduction or
elimination of prescribed treatment, and those facts have
remained virtually identical in the SAC, the Court will deny
Defendants Connolly, J. Main, Poag, and Velez's motion on
their portion of the DHS Defendants' Motion to Dismiss,
Defendants Mielke, Adams and Ottino argue that there is only
one factual allegation against them and it does not state a
constitutional violation. However, there were also no specific
allegations against these Defendants in the FAC, yet, as
discussed at length above, Judge Debevoise concluded that
looking at the allegations as a whole, and the roles of each
of these Defendants, Plaintiffs had stated a claim based on