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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-4292

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EDWARD SALERNO; TERRY TRAYLOR,

 Appellants

v.

JOHN S. CORZINE, N.J. Governor, in his official and individual capacity; RICHARD 

CODY, N.J. Former Acting Governor, in his official and individual capacities; JAMES 

E. MCGREEVEY, N.J. Former Governor, in his official and individual capacities; N.J. 

DEPARTMENT OF HUMAN SERVICES; N.J. DIVISION OF MENTAL HEALTH; 

MS. LORNA HINES-CUNNINGHAM, Assistant Division Director of Department of 

Human Services, in her official and individual capacities; MS. JOAN RICHARDSON 

BOWSER, Esquire, First Assistant Public Defender, in her official and individual 

capacities; MR. PATRICK REILLY, Deputy Public Defender, in his official and 

individual capacities; OFFICE OF THE PUBLIC DEFENDER, TRENTON, N.J.; N.J. 

DEPARTMENT OF CORRECTIONS, TRENTON, N.J.; DEVON BROWN, Department 

of Corrections Former Commissioner, in his official and individual capacities; JOHN 

MAIN, Annex, in his official and individual capacities; GRACE ROGERS, N.J. Special 

Treatment Unit-Annex Administrator, in her official and individual capacities; PAUL 

LAGANA, N.J. Special Unit-Annex, in his official and individual capacities; MERRILL 

MAIN, Director, N.J. Special Treatment Unit-Annex, in his official and individual 

capacities; MS. TINA SPAGNUOLO, Unit Director, N.J. Special Treatment Unit-Annex, 

in her official and individual capacities; DR. GREGORY GAMBONE, Psych., in his 

official and individual capacities; JENNA CACCESE, Former Program Coordinator, in 

her official and individual capacities; MARIELENA MOTTA, Program Coordinator, in 

her official and individual capacities; RUTH ROTH, Recreation Supervisor, in her 

official and individual capacities; LOU NORTON, Vocational Rehabilitation Counselor, 

in his official and individual capacities; DR. CAROL LESTER, Psych., in her official 

and individual capacities; DR. PHILLIP LEAVITT, Psych., in his official and individual 

capacities; DR. KIREEV, Psych., in her official and individual capacities; TOM 

CALABRESE, Psych., in his official and individual capacities; DR. EPPELLITTO, 

Psych., S.T.U. Kearny, N.J., in his official and individual capacities; MR. DEVON 

BULLARD, Social Worker, in his official and individual capacities; MS. REEVES, 
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Social Worker, in her official and individual capacities; MR. RODRIGUEZ, Social 

Worker, in his official and individual capacities; MS. THOMPSON, Social Worker, in

her official and individual capacities; MR. J. MILES, BMPT, in his official and 

individual capacities; DR. APOLITO, N.J. Special Treatment Unit Annex Psych., in 

his/her personal and individual capacities; TESS KEARNEY; and JACQUELYN 

OTTINO

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On Appeal From the United States District Court

for the District of New Jersey

(Civ. Action No. 2:06-CV-3547)

District Judge: Hon. Faith S. Hochberg

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 26, 2014

Before: McKEE, Chief Judge, and FUENTES and GREENAWAY, JR., Circuit Judges.

(Opinion Filed: August 18, 2014 )

OPINION OF THE COURT

FUENTES, Circuit Judge:

Edward Salerno and Terry Traylor are civilly committed at New Jersey’s Special 

Treatment Unit (STU) under the New Jersey Sexually Violent Predators Act (SVPA). 

They brought a 42 U.S.C. § 1983 suit against various state officials responsible for their 

commitment and treatment, alleging that Defendants violated their First Amendment 

right against compelled speech and retaliated against them for exercising this right. The 

District Court granted summary judgment for Defendants. We affirm the District Court.
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I.

The SVPA provides for the civil commitment of “sexually violent predators” who are 

deemed “likely to engage in acts of sexual violence if not confined in a secure facility for 

control, care and treatment.” N.J. Stat. Ann. § 30:4-27.26. Under the SVPA, New Jersey 

courts may order the civil commitment of an individual upon finding that he or she 

“needs continued involuntary commitment as a sexually violent predator.” N.J. Stat. Ann. 

§ 30:4-27.32.

Residents in the STU are entitled to an annual review hearing before a court to 

determine whether they need continued confinement. See N.J. Stat. Ann. § 30:4-27.35. If 

the STU believes that a resident is unlikely to commit sexually violent crimes, the STU 

may recommend that the state authorize the resident to petition the courts for a discharge. 

See N.J. Stat. Ann. § 30:4-27.36. Nothing, however, prevents residents from petitioning 

for release without such authorization. See id. While an STU psychiatrist involved in the 

resident’s treatment must testify at the discharge hearing, the ultimate decision on the 

resident’s discharge belongs to the court. N.J. Stat. Ann. § 30:4-27.30, .35 to .36.

The cornerstone of the STU’s treatment model is sex offender specific treatment, 

which requires that residents disclose and discuss their sexual history and prior sex 

offenses in increasing levels of detail as they progress through five treatment phases. For 

example, in Phase Two, residents must complete a “written, moderately detailed, 

rendition of the events surrounding at leas[t] one sexual offense,” App. 118, and in Phase 

Three, residents must “document[] and orally present[] a sexual offense history,” App. 
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120. Residents who fail “to participate in treatment in a meaningful manner” by 

“refus[ing] to discuss significant topics” are placed on “Treatment Probation” and 

removed to Phase Two. App. 143. Residents who do not improve their participation 

during Treatment Probation are then placed on “Treatment Refusal” status and assigned 

to Phase One, “Orientation.” App. 144.

Refusing treatment has two consequences for residents. The first is the loss of 

“privileges.” App. 126. To encourage participation in treatment, the STU devised a 

system of “rights” and “privileges.” All residents are entitled to “rights,” which include a 

radio, linens, clothing, soap, toothbrush and toothpaste, stamps, and writing supplies. 

However, only residents actively participating in treatment are entitled to “privileges,” 

which include institutional jobs, deodorant, video games, stereo systems, and word 

processors. Once a resident is placed on Treatment Refusal status, these privileges are 

taken away. 

The second consequence of remaining silent and refusing treatment is the possibility 

of prolonged detention. The statistics confirm that refusing treatment is closely correlated 

with prolonged detention. From 1999 to April 2012, 648 individuals were civilly 

committed in the STU. Of these, sixty-five have been classified as treatment refusers at 

some point. Significantly, only four treatment refusers have ever been released from the 

STU—two by death and two due to poor health. By contrast, approximately ninety of the 

remaining residents have been released. Twenty-nine of these residents were 
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conditionally released with a recommendation from the STU while another forty-seven 

were discharged by a court order without an STU recommendation. 

Salerno and Traylor have been civilly committed in the STU since completing their 

criminal sentences—Salerno in 2001 and Traylor in 2002. Both have been classified as 

treatment refusers for several years because they decline to discuss their sexual history 

and past sex offenses. As a consequence of refusing treatment, they have been relegated 

to Phase One of the treatment plan and denied video game systems, CD players, cassette 

players, and DVD players. Because Salerno attends a Treatment Orientation group, he is 

permitted to perform two hours of paid institutional work each week. Traylor refuses to 

attend this group and is denied an institutional job. 

II.

Salerno and Traylor filed separate pro se complaints against various state officials 

under § 1983. Both alleged violations of the First Amendment and sought damages and 

injunctive relief. The District Court dismissed their claims on qualified immunity 

grounds. Salerno and Traylor appealed, and we consolidated their appeals. In Salerno v. 

Corzine, 449 F. App’x 118, 123 (3d Cir. 2011), we affirmed the dismissal of Salerno and 

Traylor’s damages claims, but held that the District Court improperly dismissed their 

claims for injunctive relief. Id. We therefore remanded those claims. Id. 

Following remand, the parties filed cross-motions for summary judgment. Salerno and 

Traylor argued that the STU’s requirement that they disclose and discuss their sexual 

history and prior sex offenses violated their First Amendment right not to speak. They 
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claimed that, as a result of exercising their right not to speak, they have been denied 

certain privileges and prevented from advancing through treatment, such that they are 

effectively detained indefinitely. Salerno and Traylor asserted that these deprivations of 

liberty violated their First Amendment right against compelled speech and were in 

retaliation for their exercise of this right. 

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 “[t]he 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, 07-2751, 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’s] 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.” Id. at *12. 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, 
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241 F.3d 330, 333 (3d Cir. 2001)). Salerno and Traylor appealed from the District 

Court’s judgment.1

We have carefully reviewed the record and both parties’ arguments. We affirm the 

judgment of the District Court, substantially for the thorough and persuasive reasons 

expressed in Judge Hochberg’s written opinion.

 

1We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a grant 

of summary judgment. Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Summary 

judgment may only be granted “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). In reviewing a grant of summary judgment, we “must evaluate the evidence in 

the light most favorable to the nonmoving party and draw all reasonable inferences in that 

party’s favor.” EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).