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ALD-294 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2262

___________

JOSEPH ARUANNO,

Appellant

v.

JENNIFER VELEZ;

JOHN/JANE DOES 1-25, et al.

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 12-cv-00152)

District Judge: Honorable William J. Martini

____________________________________

Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 27, 2012

Before: SLOVITER, FISHER AND WEIS, Circuit Judges

(Opinion filed October 5, 2012)

_________

OPINION

_________

PER CURIAM.

Pro se Appellant Joseph Aruanno appeals from the order of the United States 

District Court for the District of New Jersey dismissing his civil rights action for failure 

to state a claim. We will affirm the District Court’s judgment.
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The District Court’s opinion presents a detailed summary of the background of 

this action, so we will not repeat it at length. Aruanno is confined at the Special 

Treatment Unit (STU) in Avenel, New Jersey. He filed a civil rights complaint against 

Jennifer Velez, Commissioner of the New Jersey Department of Human Services, and 

twenty-five John/Jane Does. He asserted that the Defendants have denied him an STU 

job in retaliation for exercising his constitutional rights “to remain silent under the 1st, 

5th, 14th, but not limited to, in light of my innocence of a crime I did not commit and 

pending appeals.” (Complaint, Statement of Claims.) Aruanno also alleged that he is 

being denied personal hygiene items, clothing, legal document preparation materials, 

medical care, therapeutic care, and adequate food and nutrition, as a result of the 

retaliation. (Id.) He also alleged that Defendant Velez “promulgated unconstitutional 

policy which denies me a job.” (Id., ¶4 Parties.) As relief, he sought damages and 

injunctive relief of being given a job. Aruanno also filed an application to proceed in 

forma pauperis pursuant to 28 U.S.C. § 1915.

The District Court granted Aruanno’s in forma pauperis application and screened 

the complaint for dismissal under section 1915(e)(2)(B). The District Court analyzed 

Aruanno’s complaint under the doctrine of claim preclusion. The District Court noted 

that Aruanno previously was unsuccessful in asserting retaliation claims against STU 

defendants for exercising his rights under the First and Fifth Amendments. The District 

Court noted that in Aruanno v. Spagnuolo, D.N.J. Civ. No. 07-cv-2056, Aruanno asserted 

that the defendants withheld privileges, such as a job, in retaliation for his refusal to 
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reveal his sexually violent past behavior during treatment sessions for convicted sex 

offenders; Aruanno maintained that he was being compelled to confess to crimes that he 

did not commit, in violation of his First and Fifth Amendment rights. That complaint 

was dismissed, and we affirmed, holding that Aruanno’s claim cannot succeed because of 

his failure to demonstrate that the deprivation of a job constituted “compulsion” to speak 

that triggered First and Fifth Amendment protections. See Aruanno v. Spagnuolo, C.A. 

No. 07-4276, slip op. at 4-5 (3d Cir. Jul. 15, 2008) (citing McKune v. Lile, 536 U.S. 24 

(2002)). The District Court also noted that the same allegations had been raised and 

dismissed under the doctrine of claim preclusion in Aruanno v. Sweeney, D.N.J. Civ. 

No.08-cv-4449, and affirmed in C.A. No.09-2789 (consolidated with Salerno v. Corzine, 

C.A. No. 07-3357, and Traylor v. Main, C.A. No. 08-1019). Thus, the District Court 

ordered the dismissal of Aruanno’s complaint for failure to state a claim.

This appeal followed. The parties were advised that the appeal would be 

submitted for possible summary action. Aruanno has filed a response in support of his 

appeal.

 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over the District Court’s sua sponte dismissal under section 

1915(e)(2)(B)(ii). Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may affirm 

the District Court on any ground supported by the record. See OSS Nokalva, Inc. v. 

European Space Agency, 617 F.3d 756, 761 (3d Cir. 2010).
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Aruanno argues that the District Court erred because the doctrine of claim 

preclusion does not apply here, asserting that his previous case “was never honestly 

adjudicated” and that he alleged new consequences of being denied “basics” after being 

denied a job. Appellant’s Summary Action Response at 2. Aruanno acknowledges that 

he filed a similar action that was consolidated on appeal in Salerno, in which we affirmed 

the dismissal of Aruanno’s complaint on the basis of the outcome of his prior action in 

Aruanno v. Spagnuolo. However, he emphasizes that the other appellants in Salerno

succeeded in having their cases remanded to the District Court, and he argues that we 

should similarly remand his current appeal for consolidation with the pending Salerno

matter.

We need not reach the question of whether claim preclusion applies here, because 

the allegations in his complaint fail to state a claim. As in his prior action in Aruanno v. 

Spagnuolo, Aruanno asserted retaliation by STU defendants, in the form of the denial of a 

job, for exercising his constitutional rights to remain silent regarding a crime that he 

maintains that he did not commit. As we found in that case, denial of a job for failure to 

admit to the crime for which he is confined does not amount to a “compulsion” to speak 

under the First and Fifth Amendment protections. Because the conduct leading to the 

alleged retaliation is not within the scope of constitutional protections, Aruanno cannot 

prevail on his retaliation complaint. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 

2001) (“prisoner-plaintiff in a retaliation case must prove that the conduct which led to 

the alleged retaliation was constitutionally protected”). As for Aruanno’s contention that 
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his case should be remanded for consolidation with the Salerno case, there is no basis for 

granting that relief.1

We conclude that the District Court did not err in dismissing Aruanno’s complaint 

for failure to state a claim. Accordingly, because this appeal presents no substantial 

question, we will summarily affirm the judgment of the District Court. See Third Circuit 

LAR 27.4 and I.O.P. 10.6.

 

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 In Salerno, we held that the District Court erred in applying qualified immunity to bar 

the other plaintiffs’ claims for prospective relief. We remanded the matter for 

consideration of the claims on the merits in the first instance. See Salerno v. Corzine, et 

al., C.A. Nos. 07-3357, 08-1019, and 09-2789 (consolidated), slip op. at 7-8 and n.7 (3d 

Cir. Oct. 26, 2011). The situation is not analogous here, where the District Court’s 

dismissal relies in part on the fact that Aruanno already has received an adjudication on 

the merits of his retaliation claim.