PS5-133                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 09-2484
                                   ___________

                               JOSEPH ARUANNO,
                                          Appellant

                                         v.

          Officer ANDREW BOOKER; D.O.C. Administrator PAUL LAGANA;
              GEORGE HAYMAN; SID Investigator CAPRICE CHAVERS;
          DHS Director MERRILL MAIN; DHS Commissioner, KEVIN RYAN
                     ____________________________________

                   On Appeal from the United States District Court
                           for the District of New Jersey
                          (D.N.J. Civil No. 08-cv-00305)
                      District Judge: Honorable Jose Linares
                    ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1
                                   June 2, 2010

                Before: SMITH, FISHER and GARTH, Circuit Judges.

                               (Filed:June 10, 2010 )
                                     _________

                                     OPINION
                                     _________

PER CURIAM
       Joseph Aruanno, proceeding pro se, appeals an order of the United States District

Court for the District of New Jersey granting motions to dismiss his civil rights action.

We will affirm the District Court’s order.

       Aruanno, who was civilly committed to the Special Treatment Unit in Kearny,

New Jersey pursuant to the New Jersey Sexually Violent Predator Act, N.J. Stat. Ann.

§ 30:4-27.24 et seq., filed a complaint in District Court against various employees of the

New Jersey Department of Human Services (“DHS”) and the New Jersey Department of

Corrections (“DOC”). Aruanno alleged that he had met with DOC Administrator Paul

Lagana in November 2006 regarding some stolen property. He stated that he and Lagana

also discussed a criminal complaint Aruanno had submitted against Corrections Officer

Booker.

       Aruanno further alleged that the next day Officer Booker sexually assaulted him in

his room and threatened to kill him if he told what had happened. Aruanno averred that

he reported the assault, that he was placed in lock-up for three months, and that he was

harmed on a daily basis. Aruanno stated that he spoke with Investigator Chavers of the

DOC’s Special Investigation Division but Chavers told him she would not pursue his

complaint because he did not have any witnesses. Aruanno averred that he had witnesses

but he wanted Chavers to assure their safety before he revealed their names. Aruanno

further alleged that the Special Investigation Division’s refusal to act encouraged Officer




                                             2
Booker and others to continue to harm him until December 2007, when Officer Booker

was fired for sexually harassing the staff.

       Aruanno claimed Lagana failed to properly supervise and instruct the staff, DOC

Commissioner George Hayman failed to properly train and supervise the other

defendants, and DHS Commissioner Kevin Ryan and DHS Director Merrill Main allowed

the DOC to commit these “atrocities.” Aruanno sought damages, declaratory relief, and

an order of protection from further retaliation.

       The District Court granted motions to dismiss the complaint for failure to state a

claim upon which relief could be granted, which were filed by the DHS and DOC

defendants, with the exception of Officer Booker. The District Court afforded Aruanno

the opportunity to file an amended complaint. Aruanno filed a document titled

“Amended Complaint” in which he attempted to address the deficiencies in the original

complaint that the District Court had noted in its decision. Concluding Aruanno had not

cured those deficiencies, the District Court granted motions to dismiss the amended

complaint filed by the DHS and DOC defendants, again with the exception of Officer

Booker. This appeal followed.




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       We have jurisdiction pursuant to 28 U.S.C. § 1291.1 Our review of a grant of a

motion to dismiss for failure to state a claim upon which relief may be granted is plenary.

Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008).

       We find no error in the District Court’s decision. As explained by the District

Court, Aruanno did not state a claim for relief against DOC defendants Lagana and

Hayman because they were not personally involved in the harm he allegedly suffered.

See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (holding liability under

§ 1983 may not be based on a theory of respondeat superior). Aruanno also did not state

a claim for relief based on an alleged failure to train and supervise because he did not

aver facts supporting the conclusion that either Lagana or Hayman was deliberately

indifferent to a risk of harm. See Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005)

(noting deliberate indifference requirement for failure-to-train claim). For the same

reason, Aruanno did not state a failure-to-protect claim against DHS defendants Main and

Ryan. See Hamilton v. Leavy, 117 F.3d 742, 746 (3dCir. 1997) (setting forth elements of

Eighth Amendment failure-to-protect claim).2 As noted by the District Court, Aruanno’s

       1
        At least with respect to his damages claim, Aruanno’s appeal was prematurely
filed because the District Court had yet to adjudicate Aruanno’s claims against Officer
Booker. Saber v. FinanceAmerica Credit Corp., 843 F.2d 697, 701-02 (3d Cir. 1988).
The District Court has since adjudicated those claims and a final order has been entered.
As such, we have jurisdiction to entertain the present appeal. Cape May Greene, Inc. v.
Warren, 698 F.2d 179, 184-85 (3d Cir. 1983).
       2
       To the extent Aruanno’s claim is grounded in the Fourteenth Amendment, see
Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982), Aruanno has not alleged facts
supporting the conclusion that the conduct of Main and Ryan “shocked the conscience.”

                                             4
complaint and amended complaint against the DOC and DHS defendants contain

conclusory allegations without supporting facts. The District Court also properly

dismissed Aruanno’s claim of a conspiracy by Chavers, which was also unsupported by

any factual allegations.

       Aruanno also appeals the District Court’s denial of his motion to disqualify the

Attorney General from representing Officer Booker, motion for appointment of counsel,

and request for injunctive relief. For the reasons stated by the District Court, these

motions were properly denied.

       Accordingly, we will affirm the District Court’s order.




See Nicini v. Morra, 212 F.3d 798, 810 (3d Cir. 2000).

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