NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPH ARUANNO, 

Plaintiff,

v.

STEVEN JOHNSON, et al.,

Defendants.

Civil Action No. 11-1151 (WJM)

OPINION

APPEARANCES:

JOSEPH ARUANNO, #363

Special Treatment unit

P.O. Box 905

Avenel, New Jersey 07001

Plaintiff Pro Se

MARTINI, District Judge:

This case is before this Court on remand. Joseph Aruanno, who is confined at the Special 

Treatment Unit Annex in Avenel, New Jersey, filed a civil rights complaint (ECF No. 1) against 

Steven Johnson, Assistant Superintendent; Merrill Main, Director; and 25 John/Jane Does. This 

Court dismissed the complaint with leave to amend and Aruanno filed an amended complaint, 

which this Court dismissed with prejudice, finding that further amendment of Aruanno’s claims, 

including his access to courts claim, would be futile. Aruanno appealed, and the Third Circuit 

reversed the dismissal of Aruanno’s access to courts claim where Aruanno had alleged in the

complaint that he “managed to obtain a remand involving his criminal conviction but the 

defendants refused to take him to court [during November 2009] in Cape May for the hearing 

which resulted in failure.” (Complaint, ECF No. 1 at 8.) 
2

This Court will reopen the case on remand and dismiss the access to courts claim for lack 

of actual injury because the electronically available opinion of the Appellate Division of the New 

Jersey Superior Court unequivocally establishes that on November 30, 2009, the Law Division 

judge dismissed Aruanno’s remanded criminal case on the merits, and not because defendants 

refused to take Aruanno to court.1

 See State v. Aruanno, 2012 WL 1948670 (N.J. Super., App. 

Div., May 31, 2012), certif. denied, 212 N.J. 455 (2012) (table). 

I. BACKGROUND

In his original complaint, Aruanno alleged (among other things) that the defendants denied

him access to courts. In addressing the resulting harm, he asserted that he obtained a remand 

involving his criminal conviction, but that the defendants “refused to take him to court in Cape 

May for the hearing which resulted in failure,” and that the hearing date was in November 2009. 

(Complaint, ECF No. 1 at p. 8.) This Court dismissed this access to courts claim for failure to 

assert facts to support a conclusion that he lost the opportunity to pursue a non-frivolous cause of 

action, but granted Aruanno leave to file an amended complaint to state a cognizable access to 

courts claim. (Opinion, ECF No. 2.) 

Aruanno filed an amended complaint. (Am. Complaint, ECF No. 9.) Among other 

things, he alleged that defendants’ refusal to take him to a court proceeding “for the remand of an 

invalid conviction,” resulted in “failure” of the proceeding. Id. ECF No. 9 at 3-4. On April 12, 

2012, this Court dismissed the amended complaint for failure to state a claim.2

 (Opinion, ECF 

 1 Subsequent to the remand, Aruanno filed an application for the appointment of pro bono counsel. 

This Court will deny the application as moot.

2 Specifically, this Court found that the amended complaint did not correct the deficiencies 

concerning the access to courts claim in the complaint. (Opinion, ECF No. 14 at 10.)
3

No. 14.) This Court did not grant leave for Aruanno to amend the complaint again, finding that 

further amendment would be futile. Id.

Aruanno appealed. On June 6, 2013, the Third Circuit reversed this Court’s dismissal of 

Aruanno’s access to courts claim on the ground that “Aruanno did identify at least one cause of 

action that resulted in ‘failure,’ namely, the [November 2009] court proceeding concerning his 

conviction. References to this proceeding appear in both versions of his complaint.” (Third 

Circuit Opinion, ECF No. 20-1 at 4.) “Because Aruanno did specify actual injury to his litigation, 

and because this action is not barred by claim preclusion, we will not uphold the District Court’s 

sua sponte dismissal.” Id. at p. 5.

The month following this Court’s April 2012 dismissal of Aruanno’s complaint and 

Aruanno’s filing of his notice of appeal, on May 31, 2012, the New Jersey Appellate Division 

affirmed the Law Division’s November 30, 2009, order. This Court takes judicial notice of that 

opinion, which affirmed the Law Division’s dismissal of Aruanno’s remanded post-conviction 

relief proceeding.

3

 See State v. Aruanno, 2012 WL 1948670 (N.J. Super., App. Div., May 31, 

2012), certif. denied, 212 N.J. 455 (2012) (table). In outlining the procedural history of 

Aruanno’s PCR proceeding in the New Jersey courts, the Appellate Division notes that on April 

21, 2009, the Appellate Division had remanded the matter for the Law Division to conduct a 

hearing and determine whether Aruanno was entitled to a new criminal trial. See Aruanno, 2012 

WL 1948670 *1. The Appellate Division opinion states that, on remand, Judge Garofolo 

 3 The Appellate Division opinion is readily verifiable with Westlaw access to New Jersey court 

decisions. See Fed. R. Evid. 201(b)(2) (allowing judicial notice of “a fact that is not subject to 

reasonable dispute because it . . . can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.”); see also Leggett v. Bates, Fed. App’x , 2013 

WL 3888596 *1 n.2 (3d Cir. July 30, 2013); United States v. Behmanshah, 49 Fed. App’x 372, 376 

n.2 (3d Cir. 2002); Olivera v. Warden Ft. Dix Prison, 2013 WL 1144783 (D.N.J. Mar. 18, 2013). 
4

conducted an evidentiary hearing and, on November 30, 2009, denied Aruanno’s PCR petition in a 

written decision and order. Id. The Appellate Division explains Judge Garofolo’s rationale for 

denying Aruanno’s remanded PCR petition as follows: 

Following a hearing, Judge Albert J. Garofolo determined that, though the showup 

was inherently suggestive, the identification was reliable. Judge Garofolo also 

determined that the victim’s video-taped statement to police was reliable and had 

properly been admitted into evidence at trial. In view of those determinations, 

[Judge Garofolo found that] trial counsel’s failure to challenge the showup 

identification and the victim’s statement d[id] not require a new trial.

Aruanno, 2012 WL 1948670 at *1.

On appeal from Judge Garofolo’s November 30, 2009, opinion and order, Aruanno argued 

that he was denied the effective assistance of counsel because counsel failed to pursue a Wade 

hearing4 and because counsel failed to pursue a Michaels hearing.5

 See Aruanno, 2012 WL 

1948670 at *2. The Appellate Division affirmed substantially for the reasons explained by Judge 

Garofolo in his November 30, 2009 opinion. Id. The New Jersey Supreme Court denied 

certification on November 16, 2012. See State v. Aruanno, 212 N.J. 455 (2012) (table).

II. DISCUSSION

Where, as in this case, a person is proceeding in forma pauperis, 28 U.S.C. § 

1915(e)(2)(B)(ii) requires a court to “dismiss the case at any time if the court determines that . . . 

the action or appeal . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 

1915(e)(2)(B)(ii). On April 12, 2012, this Court dismissed Aruanno’s access to courts claim6 in 

 4 See United States v. Wade, 388 U.S. 218 (1967).

5 See State v. Michaels, 136 N.J. 299 (1994).

6 “Like prisoners, individuals who are involuntarily committed to mental institutions have the 

right to access the courts.” Aruanno v. Main, 467 Fed. App’x 134, 136 (3d Cir. 2012). Standing 

of civilly committed persons to pursue an access to courts claim is governed by Lewis v. Casey, 
5

his amended complaint without granting further leave to amend because (1) Aruanno’s amended 

complaint, like his complaint, failed to set forth facts supporting his conclusory statement that 

defendants caused the “failure” of his remanded criminal case by not taking him to a state court 

hearing in November 2009, and (2) this access to courts claim was barred by claim preclusion. 

(Opinion, ECF No. 14.) In June 2013, the Third Circuit reversed the dismissal with prejudice of 

this access to courts claim, and remanded, on the ground that this Court erred in finding that the 

access to courts claim was barred by claim preclusion.7 But after this Court issued its Opinion in 

April 2012, as set forth above, on May 31, 2012, the Appellate Division explained the rationale for 

the Law Division’s November 2009 dismissal of Aruanno’s remanded PCR proceeding, and 

affirmed the dismissal on the merits for the reasons explained by the Law Division. The 

Appellate Division opinion clarifies that Judge Garofolo denied Aruanno’s remanded PCR 

petition on the merits, and not due to defendants’ alleged failure to take Aruanno to the PCR court 

in November 2009. Accordingly, there can be no doubt that defendants’ conduct did not cause 

the “failure” of Aruanno’s PCR proceeding or cause him to suffer actual injury to a non-frivolous 

legal matter, as alleged by Aruanno. This Court is required by § 1915(e)(2)(B)(ii) to dismiss 

 

518 U.S. 343, 349 (1996). Id.; see also Tucker v. Arnold, 361 Fed. App’x 409, 411 (3d Cir. 

2010). Where prisoners or involuntarily committed persons assert that defendants’ actions have 

inhibited their opportunity to present a past legal claim, they must “show (1) that they suffered an 

‘actual injury’ – that they lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim; 

and (2) that they have no other ‘remedy’ that may be awarded as recompense’ for the lost claim 

other than in the present denial of access suit.” Monroe v. Beard,, 536 F.3d 198, 205 (3d Cir. 

2008), cert. denied, Stover v. Beard, 129 S.Ct. 1647 (2009) (quoting Christopher v. Harbury,, 536 

U.S. 403, 415 (2002)).

 

7 The Third Circuit did not discuss this Court’s other ground for dismissing with prejudice.
6

Aruanno’s remanded access to courts claim with prejudice for failure to state a claim.

8

 This Court 

will deny his application for appointment of pro bono counsel as moot.9

 

III. CONCLUSION

For the foregoing reasons, this Court will reopen the case on remand, dismiss the remanded 

access to courts claim with prejudice, and deny the application for the appointment of pro bono 

counsel as moot. An appropriate Order accompanies this Opinion. 

s/William J. Martini

 

WILLIAM J. MARTINI, U.S.D.J.

DATED: August 13 , 2013

 8 It would appear that Aruanno’s assertions to this Court (and the Third Circuit) that defendants 

caused the failure of his PCR proceeding by not taking him to a hearing in November 2009 may 

have been disingenuous. This Court warns Aruanno that Rule 11 of the Federal Rules of Civil 

Procedure specifies that, by presenting to the court a pleading or other paper, an “unrepresented 

party certifies that to the best of the person’s knowledge, information and belief, formed after an 

inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support . . 

.” Fed. R. Civ. P. 11(b)(3). Rule 11(c) authorizes a court to sanction an unrepresented party, 

after notice and a reasonable opportunity to respond, if the court determines that the party has 

violated Rule 11(b). See Fed. R. Civ.P. 11(c)(1).

9

 This Court is mindful of the Third Circuit’s comment that this Court did not acknowledge 

Aruanno’s allegations of retaliation. A prisoner or civilly committed person alleging retaliation 

must assert facts showing (1) constitutionally protected conduct, (2) an adverse action by prison 

officials sufficient to deter a person of ordinary firmness from exercising his First Amendment 

rights, and (3) a causal link between the protected conduct and the adverse action taken against 

him. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Aruanno did not assert in the 

complaint or amended complaint any non-conclusory facts showing that any defendant violated 

his First Amendment right to avoid retaliation. To the extent he sought to assert that defendants 

did not take him to the November 2009 remanded proceeding in retaliation for his exercise of First 

Amendment rights, the claim fails because, given that the state courts dismissed his proceeding on 

the merits, there was no adverse action.