                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 12-2261
                                       ___________

                                   JOSEPH ARUANNO,
                                              Appellant

                                              v.

                    STEVEN JOHNSON, Assistant Superintendent;
                  MERRILL MAIN, Director; JOHN/JANE DOES 1-25
                     ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                           (D.C. Civil Action No. 11-cv-01151)
                    District Judge: Honorable Hon. William J. Martini
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 2, 2013
               Before: AMBRO, HARDIMAN and ROTH, Circuit Judges

                                (Opinion filed June 6, 2013)
                                       ___________

                                        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. Aruanno is confined at the Special Treatment Unit (“STU”) Annex in

Avenel, New Jersey. He filed his civil rights complaint against Steven Johnson, Assistant
Superintendent of the STU; Merrill Main, Director; and twenty-five John/Jane Does.

Among other things, Aruanno alleged that the Defendants denied him legal access, such

as access to the courts, to his attorneys, and to law library materials. In addressing the

resulting harm, he stated 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 hearing date was in November 2009. (Complaint,

“Complaint Summary” at 2 (emphasis omitted)). He also alleged that he suffered harm in

another District Court case, identified with the case number 08-305. Aruanno further

stated that the Defendants retaliated against him when they denied his December 2009

appointment to be interviewed by NJN Television for an episode of the program Due

Process. In addition, Aruanno alleged that the Defendants denied him telephone contact

with his family and friends, noting that the telephone lines are always busy when they

attempt to call him. As relief, he sought ten million dollars in damages and injunctive

relief. 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 denied the

access to courts claim with prejudice to the extent that it related to Aruanno v. Booker,

D.N.J. Civ. No. 08-cv-00305, noting that the case had been dismissed not due to the




                                              2
Defendants’ conduct, but because of Aruanno’s refusal to comply with discovery. 1 The

District Court dismissed Aruanno’s complaint for failure to assert facts to support a

conclusion that he lost the opportunity to pursue a non-frivolous cause of action.

However, the District Court allowed Aruanno the opportunity to file an amended

complaint to state a cognizable access to courts claim. See Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

         Aruanno filed an amended complaint. Among other things, he re-asserted that the

Defendants engaged in retaliatory actions in response to his litigation activity. He

repeated his allegations concerning the Defendants’ interference with his ability to

consult with his attorneys and their refusal to take him to a court proceeding “for the

remand of an invalid conviction,” noting that the Defendants’ actions resulted in “failure”

of the proceedings. (Amended Complaint at 3-4.) In addition, Aruanno noted the

ongoing challenge to his conviction and appeal, the “family and friends issue” involving

denial of contact, and the “media issue” involving NJN Television (Id. at 6). The District

Court screened the amended complaint and dismissed it for failure to state a claim.

         This appeal followed. We have jurisdiction under 28 U.S.C. § 1291. We exercise

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

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




1
    This Court affirmed the dismissal in C.A. No. 10-2387.

                                             3
       In its April 12, 2012 opinion concerning the amended complaint, the District Court

concluded that Aruanno failed to set forth facts concerning actual injury to a particular

court case and did not allege any particular defendant’s interference with his access to the

courts. Further, although the District Court indicated that it normally would grant leave

to amend, it declined to do so for two reasons. First, the Court reasoned that it already

had outlined the legal standard for an access to courts claim and had given Aruanno a

previous chance to allege non-conclusory facts. Second, it applied claim preclusion to

Aruanno’s action, finding that Aruanno previously presented the same facts and claims,

against defendants in privity, in Aruanno v. Main, D.N.J. Civ. No. 07-cv-3867, a case

dismissed on the merits and affirmed by us in C.A. No. 10-3382.

       Claim preclusion applies when the following three circumstances are present:

(1) a final judgment on the merits in a prior suit, (2) involving the same parties or their

privies, and (3) a later suit based on the same cause of action. See Duhaney v. Att’y

Gen., 621 F.3d 340, 347 (3d Cir. 2010). The District Court’s opinion contains an excerpt

of our affirmance in Aruanno v. Main, so we will not repeat it here. It suffices to note the

similarity of Aruanno’s allegations of interference with his litigation matters and

hindrance of communication with his attorneys. However, in Aruanno v. Main, Aruanno

had not identified any harm to any specific lawsuit as a result of the defendants’

interference. Here, Aruanno did identify at least one cause of action that resulted in

“failure,” namely, the court proceeding concerning his conviction. References to this

proceeding appear in both versions of his complaint. Further, Aruanno v. Main was filed
                                              4
in 2007, with an amended complaint filed in April 2009, but the harms alleged in this

case--both concerning the Defendants’ refusal to take him to a court proceeding and the

retaliatory denial of his interview with NJN--occurred in late 2009, following his transfer

to the STU-Annex. Aruanno stated in his notice of appeal that the allegations in this

action concern “an entirely new facility with different staff, or defendants, except one,

and 5 years later.” (Notice of Appeal at 2.) Indeed, the record in Aruanno v. Main

reflects that Aruanno formerly resided at the Northern Regional Unit STU in Kearney,

New Jersey, and the allegations pertained to events during his residence there. We also

note that the District Court did not acknowledge Aruanno’s allegations of retaliation.

       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. Accordingly, we will vacate the District Court’s judgment and remand for

further proceedings consistent with this opinion. We express no opinion concerning the

merits of Aruanno’s claims.




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