The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RUSSELL TINSLEY, Civil Action No. 15-7319(MCA)
Plaintiff,
v. OPINION
MERRILL MAIN, PH.D., STU CLINICAL
DIRECTOR, et al.,
Defendants.
This matter having been opened to the Court byDefendants Merrill Main, Ph.D., R. Van
Pelt, and Christopher Beaumont, Ph.D. (“the DHS Defendants”) (ECF No. 222) on a motionfor
summary judgment as toPlaintiff Russell Tinsley’s (“Plaintiff” or “Mr. Tinsley”)remaining First
Amendment retaliation claimagainst Defendants Main. For the reasons explained in this
Opinion, the Court will grant the motion for summary judgment as to Defendant Main.
I. FACTUAL BACKGROUND& PROCEDURAL HISTORY1
For purposes of this motion, the Court construes the facts in the light most favorable to
Plaintiff and also liberally construes the facts as he is proceeding pro se. In May 2010, Plaintiff
was civilly committed to the Special Treatment Unit (“STU”) as a sexually violent predator
(“SVP”) under New Jersey’s Sexually Violent Predator Act (“SVPA”). Plaintiff appealed his
commitment to the Superior Court of New Jersey, Appellate Division, which affirmed his
commitment in an unpublished decision. In re Civil Commitment of R.T., No. A-2521-13T2,
2016 WL 674215, at *1 (N.J. Super. Ct. App. Div. Feb. 19, 2016). Plaintiff was civilly
1 Where necessary,the Court incorporates facts from the prior motions for summary judgment.
committed as a sexually violent predator due to his sexually related arrests and convictions.2 See
id.at *2-5.
Merrill Main, Ph.D., is a licensed clinical psychologist and the Clinical Director atthe
STUand supervised the treatment of Plaintiff during the relevant time period. (See ECF No.
195-2, Defendants’ Statement of Material Facts “DSMF” at ¶ 1.)
It is undisputed that Plaintiff has submittednumerous grievances, complaints, and
lawsuits related to his confinement in the STU. The grievances, complaints, and lawsuits
challenge Plaintiff’s civil commitment,the inadequacy of his sex offender treatment, the failure
to promote him to the next stage oftreatment,andthe restrictive nature of his confinement on the
South Unit of the STU. In his grievances, complaints, and lawsuits, Plaintiff also alleges
misconduct bySTU staff, including alleged retaliatory conduct by Defendants Main, the only
remaining Defendant in this action.
Plaintiff’s numerous grievances and lawsuitsare recounted in the Court’s prior Opinions,
andDefendant Main, who is both a frequent recipient and target of the grievances,previously
concededthat he is well aware ofthem. (See ECF No. 195-3,Main Certification at ¶ 5, Ex. A
and B; Plaintiff’s Cert., Ex. Aat 7-14.) Plaintiff’s penchant for filing grievances and lawsuits led
to a confrontation between Plaintiff and Defendant Main onor about October 11, 2014, during
which Defendant Main allegedly told Plaintiff he would never advance in treatment or get off the
South Unit if he continued to file grievancesand lawsuits. To support this allegation,Plaintiff
has submitted his deposition testimonyin which he testified as follows:
2 According to the Appellate Division decision, Plaintiff’s prior court history shows at least
seven sexually related arrests, including convictions in 1984, 1999, and 2005, in Philadelphia
and San Francisco. Since age thirteen he has also been charged with multiple non-sexual
offenses in Pennsylvania, California, and Nevada, including theft, burglary, fraud, assault, drug
and weapons offenses, vehicular manslaughter, and failure to register. (Id.at *1).
Well, I approached Dr. Main on several occasions and he
specifically make it clear, you know, Mr. Tinsley, you ain’t [sic]
never going to get off the South Unit because of your grievances.
You filing your lawsuits and you’ll never get off the South Unit
Matter of fact, you know, all your chances of even getting out of
here is being taken away from you. This guy specifically say [sic]
this.
(ECF No. 224-4, Pl. Deposition (Jun. 28, 2018) 38:7-14.) Plaintiff grieved the incident and the
record contains a Remedy Form dated October 29, 2014, in whichPlaintiffstated: “On Thursday
October 11, 2014[,] after the Community Meeting with DHS staff[,] Merrill Main, STU Clinical
Director made statements to me that may be Retaliatory ….” (See ECF No. 224-5.) Defendant
Main responded personally to this grievance, but his response is largelyillegible.3 (See id. )
In the prior motion for summary judgment,Defendant Main averredthat his concerns
about Plaintiff’s grievances and lawsuits were exclusively motivated by legitimate treatment
concerns(see ECF No. 195-3,Main Cert. ¶ 5)and thus Plaintiff’s retaliation claim failed
pursuant to the Third Circuit’s decision Oliver v. Roquet, 858 F.3d 180 (3d Cir. 2017).4 The
DHS Defendants raised no other arguments in their motion for summary judgment as to
Defendant Main. The Court denied the motion for summary judgment as to Defendant Main,
finding that that there were disputed issues of material fact as to whether Defendant Main
targeted Plaintiff’s filing of grievances (and not simply the collateral consequences of that
protected speech), and,barring other arguments for dismissal,Plaintiff established a prima facie
case of First Amendment retaliation. (See ECF Nos. 205-06.) The DHSDefendants
3 In his certification to the Court,Defendant Main disputes that he made this statement, and
asserts that he would never tell any resident that he could not advance in treatment if he
continued to file grievances. (ECF No. 195-2,DUSMF at ¶ 6.)
4 In letters to Plaintiff dated October 7, 2014 and November 17, 2014, Defendant Main cautioned
Plaintiff that his grievances, lawsuits, and legal arguments were interfering with his treatment.
(ECF No. 195-3, Main Cert. ¶ 5, Exhibits A, B.)
subsequently sought and received permission to file a third and final summary judgment motion
to address the so-called “same decision defense” and qualified immunity. (See ECF No. 221.)
To further support his allegations that his lack of treatment progress and housing
assignment are retaliatory,Plaintiff has submitteda “Confidential Report” dated September 9,
2015, prepared by Ronald G. Silikovitz, Ph.D.,at the request of Plaintiff’s public defender in
connection with his civil commitment proceedings. The Confidential Report, which
recommends Plaintiff’s release from the STU, is based on two interviews with Plaintiff,the
administration of a Personality Assessment Inventory, and the review ofPlaintiff’s history and
treatment progress at the STU. (See ECF No. 224-6 at 1.)
As recounted inDr. Silikovitz’s Report, on or about June 25, 2014,a few months before
Plaintiff’s confrontation with Defendant Main, Plaintiff’s treatment team recommended that he
be promoted to Phase 2 of treatment andbe provided with more treatment models based on his
good behavior and progress.5 (See id.at 3.) On October 31, 2014, around the time he filed his
grievance about the confrontationwith Defendant Main,the Treatment Progress Review
Committee (“TPRC”) at Plaintiff’s annual review unanimously recommended that Plaintiff be
advanced to Phase 2 of treatment based on his progression. (See id.)
DHS Defendants do not deny that Plaintiffwas promoted to Phase 2 in the Fall of2014;
however,they have submitted Plaintiff’s most recent TPRCReport (hereafter referred to as “the
2019 TPRC Report”),6 whichexplains that Plaintiff “had been promoted to Phase 2 following
5 This information is contained in a Multidisciplinary Treatment Team Report (STIJ) dated June
25, 2014, and it is not clear when Plaintiff treatment team first recommended he be promoted.
6 The 2019 TPRC Report is dated November 22, 2019 and signed by Paul Dudek, Ph.D., a STU
Psychologist in the Special Treatment Unit; it was alsoreviewed by two additional psychologists
who signed off on its contents. The 2019 TPRC Report is based upon treatment notes/reports
indicating the quality of Plaintiff’s progress in treatment, consultation with Plaintiff’s Treatment
the 9/2/14 TPRC review. However, he was demoted to Phase l following the 8/30/16 review
based on his placement on Treatment Refusal status.” (Id.at 1.) The 2019 TPRC Report
recommends that Mr. Tinsley be maintainedin Phase 1 of treatment. (Id.)
As relevant here, the 2019 TPRC Report also summarizes Plaintiff’s numerous
infractions which led to his placement on MAP7 and Temporary Close Custody (“TCC”)
between October 2014 and June 2019:
Mr. Tinsley was placed on MAP after engaging in a physical
altercation with another resident in his current process group on
October 30, 2014. While on MAP status, on January 30, 2015, he
was reported to have one of his “associates” misrepresent herself
as an attorney, without any indication she was licensed to practice
law, and placed on Room MAP at this time. On 2/26/15 Mr.
Team representatives, a clinical interview with Plaintiff, and all available discovery material
included in his STU file. See id.at 1.
7 MAP is a component of the clinical treatment program at the STU that focuses on stabilizing
disruptive or dangerous behaviors. See M.X.L. v. New Jersey Dep't of Human Servs./New Jersey
Dep't of Corr., 379 N.J. Super. 37, 45, 876 A.2d 869, 873 (App. Div. 2005). The New Jersey
courts have explained the treatment component as follows:
There are four levels of MAP: Room, Tier, Wing, and Program.
Room, Tier and Wing MAP restrict the unescorted motion of a
resident to his room, his tier or his wing. The level of MAP
placement is proportionate to the apparent danger or instability
reflected by the resident. MAP levels represent an increasing return
of privileges, culminating in a return to the general population with
all privileges reinstated.
Program MAP is the lowest level of intervention and is instituted
when a resident is unwilling to control his anti-social behaviors
and has not developed the behavioral skills necessary to maintain
appropriate control. MAP can take a number of forms[, including]
the suspension of privileges. While in Program MAP, a resident
continues to attend all assigned treatment groups unless
specifically contra-indicated. MAP status is generally implemented
for thirty-day periods, with a review of that status every thirty days
or soonerif clinically appropriate.
Id.at 873-74.
Tinsley was placed on TCC by DOC in response to reports that he
was being threatened. He was taken off of MAP status on 6/29/15.
On 9/22/15 Mr. Tinsley was reported to write and publish a book
titled “Civilly Committed,” available to the general public for
purchase, which consisted of content related to disclosure of the
name of one of his victims, who was a minor at the time of the
offense. This led to another MAP placement (program MAP) on
above mentioned date.
Additionally, he was reported to continue to promote his
pimpinentertainment.com website. On 5/6/16 Mr. Tinsley was
placed in TCC for being found in possession of a credit card and
accepted ownership of the credit card. On 8/17/16 program MAP
was discontinued and it was indicated that Mr. Tinsley adequately
processed his MAP placement.
Mr. Tinsley was again placed on MAP status on7/19/18 for poor
control of his anger, impulsivity, being verbally abusive and
threatening, and severely disrupting the therapeutic milieu. After
becoming sexually provocative in his statements towards a female
facilitator, Mr. Tinsley became increasingly agitated and
threatening in his demeanor after hewas directed to leave the
group. He continued to present in a menacing manner after leaving
group. He remained on MAP status until 9/18/18 when he was
placed in TCC after he was involved in a physical altercation with
a peer. He remained on MAP status until December 2018.
He was placed on Temporary Close Custody on 6/7/19 due to
notification from DC that he had made unauthorized phone call(s)
that violated institutional rules.
(Id.)
The 2019 TPRCReport also summarizes Plaintiff’s progress in treatment and his
placement on Treatment Probation andTreatment Refusal (“TR”) for his failure to meaningfully
participate in treatment:
[Mr. Tinsley] is a generally opinionated individual who often
perseverates on systematic and legal issues. While he can be re-
directed, he generally will remain preoccupied with attempts to
convince others of his presentation of being a person who has been
unfairly persecuted by the legal system. He will typically frame his
arguments through a religious context or through legal arguments
that are inappropriate or misinterpreted to the context. Mr. Tinsley
frames much if not all of his difficulties in establishing a positive
trajectory in treatment on administrative and legal complaints that
he is being punished for publishing a book that contained
identifying information of at least one victim and misconstrues
multiple documents related to his treatment. In the course of
individual treatment he has maintained that the publication of the
book and maintenance of an online presence is his First
Amendment right. He will present his history through a defense of
minimization such as through admitting that he committed sexual
offenses, but maintains that the encounters were consensual sexual
experiences with adolescents.
At his request, three individual sessions were held with Mr.
Tinsley. His treatment team noted that these appear to have some
positive impact on him. It was noted that after these sessions, Mr.
Tinsley was able to interact in a more positive and adaptive
manner with his peers and treatment providers during group
sessions.
Mr. Tinsley had originally been placed on Treatment Probation
status on 10/22/15. However, he did not complete the
recommended objectives of this status and was placed on
Treatment Refusal status on 11/23/15. By 8/22/16 it was noted that
he was removed from TR status based on one month of group
attendance and he was then placed in treatment readiness status on
the South Housing Unit. An inter-office Memo (dated, 8/25/16),
subject “Treatment Refusal Status-Revised”indicated that
although Mr. Tinsley has been consistently attending and
participating in process group for over a month, he has not
demonstrated that he has followed the treatment recommendation
to remove his victims’ names from the book he published. Mr.
Tinsley’s refusal to comply with this treatment recommendation
compelled the DHS Treatment Team to place him again on
Treatment Refusal status. His publication of “Civilly Committed!”
available to the public through his website and Amazon.com has
the names of two victims listed, demonstrating not only “poor
judgment and an inflated sense of self-importance, but also a
complete lack of regard for the impact this might have on his
victims. It was recommended that he “pull the ‘book’ from
publication and sale to prevent further harm to his victims, but he
refused to do so.” This demonstrates an inability to utilize
treatment in an effective or meaningful manner and the lack of
understanding of how he is re-victimizing the victim by engaging
in suchbehavior. Furthermore, it has been indicated that his
narcissism and sense of entitlement continue to remain of
significant clinical concern and viewed as a risk factor by his
Treatment Team, as it connects to his sex offending behavior and
the dynamics involved in self-satisfaction and sexual gratification.
Mr. Tinsley continues to be on Treatment Refusal status.
Following his discharge from MAP status in August 2016 he was
transferred from a MAP oriented group to a Treatment Orientation
Process Group consistent with his placement on TR status. He did
not actively engage the group in matters directly related to his
treatment concerns until February 2018 when he began to discuss
his belief that his placement on TR status was unjust. He
maintained that he should not be expected to discuss his offenses
in the TOPG and that he does not need to remove the names of the
victims from his book as he alleges that the victims provided
consent for their names to be included.
Mr. Tinsley has maintained that he has committed two sexual
offenses. This includes on [sic]in California in 1982 and a second
in Pennsylvania in 2004. He maintains that there was no force used
either offense and that both cases involved consensual sex with
minors. In April 2018 he claimed that he met one of the reported
victims, LA, while promoting a concert in the Philadelphia area.
He claimed that while he met her in a high prostitution area, he
began to date the woman and brought her to meet his family. He
claimed that he would provide her withfood and money. He
claimed that on the day of the offense he met the victim at a hotel
and that he brought food, alcohol, and marijuana for their use. He
claimed that he told the victim that due to medical problems he
would have trouble achieving and maintaining an erection but that
he could still perform oral sex on her. He claimed that he left the
room to get money that he promised her but, on his return, he
found the victim robbing him of some of his possessions. He
maintained that he did not physicallyor sexually assault the victim
and that she had lied to him about her age. He also maintained that
he believed several men in the lobby of the motel could have been
working with her and assaulted him as a part of the robbery. In
later groups Mr. Tinsley stated that he assumed full responsibility
for his crimes. However, he remained evasive in noting what
actions he performed to commit any crimes, the nature of the
offenses, how he victimized others, or what the impact of his
actions could have been.
Mr. Tinsley was again placed on MAP status on 7/19/18 for poor
control of his anger, impulsivity, being verbally abusive and
threatening, and severely disrupting the therapeutic milieu. After
becoming sexually provocative in his statements towards a female
facilitator, Mr. Tinsley became increasingly agitated and
threatening in his demeanor after he was directed to leave the
group. He had originally been discussing a submitted grievance but
became agitated when questioned by the facilitator. He made a
number of racial and misogynistic statements towards the
facilitator and indicated that he hoped she would die. It was at this
time he left the room only to return shortly after to retrieve a cup
and again slamming the door on his way out of the room. He
continued to present in a menacing manner after leaving group. He
waited for the therapists to leave the group and stormed past them
mumbling under his breath. He slammed unit doors in the face of
the facilitators. It was noted that when DOC personnel went to
follow Mr. Tinsley, he had quickly left the area. He remained on
MAP status until 9/18/18 when he was placed in TCC after he was
involved in a physical altercation with a peer.
Mr. Tinsley at times struggled to make beneficial use of his time in
the MAP group. He would indicate that he would not actively
participate in the group as he intended to address the reasons he
was placed in MAP through the legal system. However, it was
opined by his treatment team at the time that he had been able to
adequately address the behavioral concerns leading to his MAP
placement by December 2018. At that time, he was released to
general population. It should be noted that in June 2019 he was
briefly placed in TCC once again due to reports from DOC that he
had made unauthorized phone calls. Specifically, this appears
connected to reports that Mr. Tinsley may have been engaged in
having sexualized phone conversations with a 16-year-old female.
After having been released to general population in December
2018 and resuming treatment inhis Treatment Orientation Process
Group. It was noted that he showed some improvement in his
ability to interact with pers [sic] and facilitators in the treatment
sessions. Interestingly, Mr. Tinsley has shown attempts to be a
leader in groups such as through being [sic] in a number of books
about therapy into the sessions. This has led to some considerable
discussion in groups on topics such as empathy. Mr. Tinsley has
stated that his reflections about himself through his religion have
led him to change his attitudes ad [sic] behavior.
Mr. Tinsley is not assigned any psychoeducational modules based
on his treatment refusal status. To his credit, in past reviews it was
noted that he had completed drafts of an Autobiography, a sexual
history, an offense cycle, and a Personal Maintenance Contract. It
does not appear from the available records that Mr. Tinsley has
addressed these documents o[r]revised them since 2014. There is
no evidence to suggest that Mr. Tinsley has made any attempts in
the prior year to address the dynamic risks of re-offense sexually
and has not demonstrated a sense of understanding or mastery of
offense related dynamics or mitigation of risk factors associated
with recidivism. Mr. Tinsley is not engaged in any substance abuse
programming at this time. Based on his poor engagement in the
treatment process, he is not at this time appropriate for referral to
the Therapeutic Community.
The TPRC Report also includes a“clinical interview” with Plaintiff, in which Plaintiff
“complain[s]that he has not been given positive credit for engaging in treatment at the STU[]”
and “describes himself as ‘fully engaged’ in the treatment process.” (TPRC Report at 12.)
Plaintiff also “complain[s]at length that positive credit for any treatment gains has not been
afforded to him because the STU administration is retaliating against him for publishing a book
that includes themes specific to his civil commitment” and“went on to claim that he has
addressed clinical concerns related to his history of sexual offending and has completed all the
programmatic requirements including the sexual history, offense cycles, sexual history, and
relapse prevention planning.” (Id.) Plaintiff also repeatedly referenced the instant civil matter
multiple times during the interview. (See id.at 12-13.) Plaintiff further asserted in the clinical
interview that he wants to be placed in a formal Process Group and wantsto complete additional
modules and “complained, without merit, that he has been told by his group facilitators that here
is nothing they can do to remove him from TR status.” (Id.at 13.) Plaintiff, however, “also
went on to appropriately describe the clinical recommendations in place to be able to be moved
off of TR status.” (Id.)
During the interview, Plaintiff also downplayed his sexual offenses and convictions:
In discussing his offenses of record, Mr. Tinsley stated that with
the 1982 offense he was celebrating a promotion at a job at a club
and met the identified victim. He stated that he was around 22 or
23 at the time but did not know that the victim was 17 years old.
He claimed that the sexual contact was consensual but because he
would not accept a plea deal, the charges were inappropriately
"upped" to a rape related charge. He denied engaging in any
violence or threats with the victim. He claimed that he is still in
contact with the victim. Mr. Tinsley stated that due in part to the
perceived injustice of this event as well as his commitment, that a
documentary was going to be made of his life. He then claimed he
is in discussions for his life to be made into "a feature film" and
that he wanted t[o] be discharged so that the movie does not end
with him still civilly committed.
With regards to the 2004 offense he claimed that while he was in
Philadelphia, he was treated for colorecta[l]cancer and as a result
he could not active an erection or ejaculate. He stated that he
“picked up a prostitute”and wanted to perform oral sex on her
until she reached climax. He stated he did this so as not to feel
“less than a man.” He claimed he had known her for two weeks
prior to the incident. He claimed that they engaged in sexual
activity while at a hotel and that he had paid her. He claimed that
he briefly left the room to get food for them but when he returned
after realizing he left his money in the room; he found the victim
attempting to steal his money and jewelry. He stated that they
struggled when he went to grab his money back. He claimed that
the victim has told him that she regrets that he was wrongly
charged and convicted of a rape offense. He maintained a denial
that he had raped the victim.
(Id.at 13.)
According to the TPRC Report,Plaintiff “declined to participate in psychological testing
with the STU psychometrist” but was “administered the Psychopathy Checklist-Revised (PCL-
R), 2nd Edition during the 2014 TPRC evaluation.” (Id.at 13-14.) The Annual Report further
explains the purpose of the testing and Plaintiff’s results in 2014:
The PCL-R provides a dimensional score that represents the extent
to which a given individual is judged to match the “prototypical
psychopath.” The higher the score the closer the match, and
presumably, the greater the confidence that the individual is a
psychopath (Hare, 2003, PCL-R Rating Booklet). The cut-off score
on the PCL-R indicative of psychopathy is 30. That is, an
individual who receives a score of 30 or above on the PCL-R
meets diagnostic criteria for psychopathy. Mr. Tinsley received a
score of 34 which suggests that he does meet the diagnostic
threshold for the construct of psychopathy (score of 30). When
psychopathy is viewed as a dimensional construct, a score of 34
falls into the High range.Mr. Tinsley received a score of 34 which
suggests that he does meet the diagnostic threshold for the
construct of psychopathy (score of 30). When psychopathy is
viewed as a dimensional construct, a score of 34 falls into the High
range.
(Id. at 14.)
Plaintiff was also administered the Stable-2007, which“was developed to assess change
intermediate termrisk status, assessment needs, and help predict recidivism in sexual offenders,
and Plaintiff “scored a 19 out of a possible 24 points on the STABLE-2007[.]” According to the
2019 TPRC Report,
[t]his score falls into the interpretive range considered to be High
level of dynamic needs. Given his lack of an intimate relationship
and poor relationship history, his poor behavioral stability, non-
compliance, interactions with others, and significant difficulty in
meeting his needs a majority of the dynamic risk factors in the
STABLE-2007 were noted to be of clinical concern. These factors
included: significant social influences, intimacy deficits, poor
cognitive problem solving, deviant preference, hostility towards
women, negative emotionality, impulsivity, general lack of
concern for others, and rejection of supervision.
(Id.at 14.)
Finally, with respect to testing, Plaintiff was scored on the Static-99R, which “is intended
to position offenders in terms of their relative degree of risk for sexual recidivism based on
commonly available demographic and criminal history information that has been found to
correlate with sexual recidivism in adult male sex offenders.” (Id.) Petitioner received a total
score of 5, which places him at “above average” risk for being charged or convicted or another
sexual offense. (Id.)
The TPRC panel also determined thatPlaintiff suffers from “Other Specified Paraphilic
Disorder (non-consent),” which means he experiences recurrent and intense fantasies, urges,
and/or behaviors involving sexual arousal to persons who, by virtue of force and/or their age, are
unable to consent.” (Id.at 15.) Review of prior documentation as well as the past TPRC clinical
interview indicates that Plaintiff“denies having a deviant sexual arousal and denies committing
sex offenses or reports the sex acts as consensual.” (Id.) Plaintiff also meets the criteria for
Antisocial Personality Disorder (with Narcissistic Features) “as he possesses features consistent
with the disorder, which causes clinically significant impairment in his social functioning.” (Id.
at 16.)
At the conclusion of theTPRC Report, the panel summarized its findingsand reached a
concluded that Plaintiff should be maintained in Phase 1:
Mr. Tinsley is a 64-year-old, single, African American male who
was first arrested for sexual offending when he was 16 years old.
He then went on to accrue a total of six sexual offense related
charges and was convicted of three. He was most recently
convicted of Aggravated Assault and Aggravated Sexual Assault
for raping a 22-year-old female. His documented victims include
known females, both adult and juvenile. His offending behaviors
also vary in range from committing offenses involving rape to
stalking. He has not been documented to take any responsibility for
his sexual offending, as he denies his offenses or reports the sex
acts as being consensual.
Mr. Tinsley has also engaged in a number of nonsexual offenses
including but not limited to distributing CDS, Altering Operators
License, Vehicular Manslaughter, Mail Fraud, Aggravated Assault,
and Theft. This range of behavior is reflective of the antisocial
component of his personality structure. His antisocial orientation
includes substance abuse, a criminal lifestyle beginning at a young
age as well as poor compliance with supervisory conditions, as he
has demonstrated a disregard for abiding by legal conditions
implemented upon himby past criminal sentence and
incarceration. Additionally, he has violated parole and has been
charged with four Megan's Law violations. He offended sexually
after being released from incarceration and continued to offend
non-sexually while on probation. He has accrued infractions while
incarcerated and has been placed on MAP status while at the STU.
Overall, Mr. Tinsley’s pattern of offending has not been deterred
by numerous legal sanctions. This pattern reflects that it is highly
likely that Mr. Tinsleywill not cooperate with supervision or the
demands of conditional discharge.
In sum, the TPRC panel recommends that Mr. Tinsley be
maintained in Phase 1 oftreatment. This is consistent with his
treatment team. He continues to be considered to be in the early
stages of treatment. Currently, he remains on TR status. Mr.
Tinsley should seek to meaningfully engage in his groups on a
consistent basis, actively participate, refrain from any MAP
placements or problematic behaviors, and demonstrate sustained
motivation for treatment. In reviewing his static and dynamic risk
factors and his current level of treatment, at this time, based on the
information gathered for this evaluation, Mr. Tinsley continues to
be at high risk to engage in future acts of deviant sexual behavior
and presents at a high risk to recidivate if not confined to a secure
facility such as the STU.
(See id.at 17.)
In his certification, Defendant Main characterizes Plaintiff as a Treatment Refuser, who
denies that he has committed sexual offenses, disrupts group sessions by only discussing legal
matters and by being verbally combative and volatile. (Main Certification at ¶ 1.) Defendant
Main also asserts that Plaintiff cannot effectivelyparticipate in sex-offender-specific treatment
because he consistently denies criminal wrongdoing, despite his substantial criminal history. (Id.
¶ 2.)
In his deposition and certification submitted inopposition to Defendants’ motion for
summary judgment, Plaintiff denies that he has refused treatment, claims that he accepts
responsibility for his sexual offenses,and reiterates his allegations that the treatment decisions
andhis placement in the South Unithave been orchestrated by Defendant Main inretaliation for
his filing of grievances, lawsuits, and the book about his civil commitment entitled “Civilly
Committed.” (See,generally,ECF No. 224-2; Pl.Dep. at 24:8-11; 28:13-16.)
Although he disputes Defendants’ assessment of him as a treatment refuser who denies or
minimizes his sexual offenses, Plaintiff’s own Statement of Disputed Material Facts(ECF No.
224-1) engages in this very type of denial. For example, Plaintiff states the following about his
1984 conviction:
With regards to my conviction in 1984 of a sexual offense, I
discussed that I had consensual sex and was falsely accused by the
victim when her sister found out that we had been together. I even
presented to Court the affidavit of Harriet Williams, an attorney
who represented me (Tinsley) in California, who indicated that she
had information that the victim in this case had said that had she
been aware of how long the case would take and the severity of
punishment Russell Tinsley faced, she never would have brought
the charges against him, and was being forced to testify by the
prosecutor.
(ECF No. 224-2,Plaintiff’s DSMF ¶ 28.)
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is
genuine only if there is “a sufficient evidentiary basis on which a reasonable jury could find for
the non-moving party,” and it is material only if it has the ability to “affect the outcome of the
suit under governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see
alsoAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248.
“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party's
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor .’” Marino
v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 447 U.S. at 255));
see alsoMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v.
Klem, 298 F.3d 271, 276–77 (3d Cir. 2002).
The burden of establishing that no “genuine issue” exists is on the party moving for
summary judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must
present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under
Anderson, Plaintiffs' proffered evidence must be sufficient to meet the substantive evidentiary
standard the jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party
must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Celotex, 477 U.S. at 324 (quotations omitted); see alsoMatsushita, 475 U.S. at
586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits
of a party’s motion for summary judgment, the court's role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as toany material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322–23. “[A]
complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972
F.2d 53, 55 (3d Cir. 1992).
A document filed pro se is to be “liberally construed” and “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)). In addition, whenconsidering a motion in a pro se plaintiff’s proceedings, a court
must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by
name.” Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247–48 (3d Cir. 1999). Nevertheless,
on a motion for summary judgment, “a pro se plaintiff is not relieved of his obligation under
Rule 56 to point to competent evidence in the record that is capable of refuting a defendant's
motion for summary judgment.” Ray v. Fed. Ins. Co., No. 05-2507, 2007 WL 1377645, at *3
(E.D. Pa. May 10, 2007). “[M]erely because a non-moving party is proceeding pro se does not
relieve him of the obligation under Rule 56(e) to produce evidence that raises a genuine issue of
material fact.” Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000); see also
Dawson v. Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017).
III. ANALYSIS
Retaliation against a prisoner or civil detainee based on his exercise of a constitutional
right violates the First Amendment. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012)
(citing Mitchell v. Horn, 318 F.3d 523, 529–31 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330,
333–34 (3d Cir. 2001); Allah v. Seiverling, 229 F.3d 220, 224–26 (3d Cir. 2000). In order to
state a prima facie case of First Amendment retaliation, a prisoner must assert that: (1) he
engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to
deter a person of ordinary firmness from exercising his constitutional rights; and (3)the
constitutionally protected conduct was “a substantial or motivating factor” for the adverse action.
See Rauser v. Horn, 241 F.3dat 333. A prisoner’s ability to file grievances and lawsuits against
prison officials is a constitutionally protected activity for purposes of a retaliation claim. See
Milhouse v. Carlson, 652 F.2d 371, 373–74 (3d Cir.1981);Mitchell v. Horn, 318 F.3d at 530;
Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).
The Third Circuit’s decision in Oliver v. Roquet, 858 F.3d 180 (2017) controlsthe
Court’s analysis of the claims against Defendant Main. In Oliver v. Roquet,the plaintiff, also an
SVP, was denied advancement to the next phase of treatment, and he sued a psychologist at the
STU for allegedly retaliating against him for his own legal activities and his legal activities on
behalf of other residents. The primary facts in support of the retaliation claim were contained in
a report, which, among other things, suggested that the plaintiff may need to consider whether
his focus on legal activities was interfering with his treatment. See id.at 185-86. In Oliver, the
Third Circuit clarified the pleading requirements for a retaliation claim against a mental health
professional at a state institution, holding that “a prima facie showing of causation requires more
than the allegation that the professional based a medical decision on symptomology that
happened to relate in some way to a patient’s protected activity.” Instead, there must be
particular facts alleged that allow the court to reasonably infer it is the protected activity itself,
and not simply medically relevant behavior associated with that activity, that formed the basis of
the defendant’s adverse action.” Id.at 192. Thus, after Oliver, to state a First Amendment
retaliation claim against a medical professional based on treatment decisions that seem to target
or affect a protected activity, a Plaintiff must provide facts showing that the medical professional
targeted the protected speech itself and not just the legitimate clinical or collateral consequences
of that speech.
As explained by the Third Circuit,
“[t]his is so because a medical professional’s holistic approach to
diagnosing a patient’s mental health will sometimes require
consideration of his otherwise protected speech and conduct to
evaluate any adverse consequences they are having on his
treatment. Framed in terms of the Rausertest and the relevant
pleading standards, an assertion by a mental health detainee that
his treating psychologist retaliated against him, based only on the
factual allegation that the psychologist considered the effect his
First Amendment activity was having on his treatment, would not
support the inference that retaliation was the “substantial or
motivating factor” for the psychologist’s recommendation.
Oliver, 858 F.3d at 192.
The Third Circuit further explained that a medical report or decision “purporting to focus
only on the collateral consequences of a detainee’s First Amendment activity could be sufficient
to establish a prima facie case of retaliation where the plaintiff is able to plead ‘consideration
plus,’—i.e., where, in addition to consideration of the protected activity by way of its association
with medically relevant conduct, there are specific factual allegations supporting an inference
that the adverse action was based on the protected activity itself.” Id. “Consideration plus” may
exist, for example, where the complaint contained “specific factual allegations suggesting that
the collateral consequences were fabricated, [allegations] that the defendant had communicated
anger or frustration with the protected activity itself or had threatened to take action against the
plaintiff, or [allegations] that the collateral consequences relied upon were irrelevant to the
medical judgment in question.” Id.
In its prior Opinion, the Court found that Defendant Main’s statements to Plaintiff in
early October 2014, that he would not be discharged from the STU or get out of the restrictive
South Unit if he continued to file grievances and lawsuits providedthe consideration plus, as
required by Oliver, and, it proven, could allow a jury to find that Plaintiff satisfied the causal
connection between his filing of grievances and/or lawsuits and his failure to progress in
treatment thereafter and/or his continued confinement in the restrictive South Unit. The DHS
Defendants made no other arguments in favor of summary judgment as to Defendant Main, and
the Court found that Plaintiffestablished a prima facie case of retaliation against Defendant Main
in connection with his filing of grievances and lawsuits.8 (SeeECF Nos. 205-06.)
The DHS Defendants now assert that Defendant Mainis entitled to summary judgment 1)
based the same decision defense applicable to First Amendment retaliation claims and 2) on the
basis of qualified immunity. The Court first considers the same decision defense.
8 Although Plaintiff asserted that the DHS Defendants also refused to advance him in treatment
based on the publication of his book “Civilly Committed”, the record evidence in the prior
motions showed that thecollateral consequences of the publication of the book –namely
Plaintiff’s naming of his victims and denial and/or minimization of his sexual offenses and not
the First Amendment activity itself motivated the DHS Defendants to encourage Plaintiff to
redact and/or withdraw the book from publication. Indeed there is no record evidence that
Defendant Main sought to retaliate against Plaintiff for the publication of the bookitself.
Even if a Plaintiff establishes a prima facie caseof First Amendment retaliation,“prison
officials may still prevail if they establish that ‘they would have made the same decision absent
the protected conduct for reasons reasonably related to a legitimate penological interest.’” This is
often referred to as the ‘same decision defense.’” Watson, 834 F.3d at 422(citation omitted).
The Third Circuit places the burden in prisoner retaliation cases on the defendant to establish the
same decision defense. See Rauser, 241 F.3d at 333 & n.2; Watson, 834 F.3d at 429.
In prison disciplinary retaliation cases, courts “evaluate ‘the quantum of evidence’ of the
misconduct to determine whether the prison officials’ decision to discipline an inmate for his
violations of prison policy was within the broad discretion we must afford them.” See Watson,
834 F.3d at 426 (quoting Carter v. McGrady, 292 F.3d 152, 159(3d Cir. 2002)). In Carter,an
inmate claimed that he was given a misconduct because prison officials resented his functioning
as a jailhouse lawyer. The Third Circuit, in rejecting that claim, held that most prisoners’
retaliation claims will fail if the misconduct charges are supported by the evidence, explaining
that “[e]ven if prison officials were motivated by animus to jailhouse lawyers, Carter’s offenses,
such as receiving stolen property, were so clear and overt that [the court] cannot say that the
disciplinary action taken against Carter was retaliatory.” Id. at 159. Thus, the Third Circuit
“[could] not say that the prison officials’ decision to discipline Carter for his violations of prison
policy was not within the ‘broad discretion’ that [courts] must afford them.” Id.(citations
omitted) (emphasizing the “great deference” that the decisions of prison administrators are
entitled to in the context of disciplinary proceedings). As explained in Carter, due to the “the
force ofthe evidence that Carter was guilty of receiving stolen property” there could be no
genuine issue of material fact that his misconduct citation was reasonably related to legitimate
penological interests, and that he would have been disciplined notwithstanding his jailhouse
lawyering. See id.
More than a decade later, inWatson v. Rozum, 834 F.3d at 425, however, the Third
Circuit held that the plaintiff’s violation in that case –his possession of a broken radio –“was
not so ‘clear and overt’ a violation that [the court] can conclude that he would have been written
up if he had not also given prison officials “a hard time” by asking for a grievance slip. See id.
The Court emphasized that the radio had allegedly been in the same condition for more than a
year and there was evidence that other inmates had radios with loose or broken antennas, but
those items were not confiscated and the inmates did not receive a misconduct. See id. Thus,
defendant in Watson could not prevail on the same decision defense.
Plaintiff is an SVP who claims that Defendant Main, who admittedly oversees Plaintiff’s
treatment decisions at the STU, failed to advance him in treatment and is keeping him in a
restrictive housing unit due to his filing of numerous grievances and lawsuits. Although the
Third Circuit has not considered the same decision defense in such a context, it noted in Oliver
that where a plaintiff makes out a prima facie case of retaliation,“the burden shifts to the
[D]efendant to prove by a preponderance of the evidence that [he] ‘would have made the same
decision absent the protected conduct for reasons reasonably related to a legitimate penological
interest.’” 858 F.3d at 190 (quoting Rauser, 241 F.3d at 333).
Defendant Mainassertsthat even if Plaintiff has made out a prima facie case of
retaliation, Main (or his subordinates) would have made the same decisions – to not advance him
in treatment and keep him on the restricted South Unit –based on Plaintiff’s Treatment Refusal
and other infractions and notwithstanding his filing of grievances and lawsuits.
In it undisputed that in order to progress through sex offender treatment, Plaintiff must
discuss and take responsibility for his past sexual offenses. See Salerno v. Corzine,06-3547, 07-
2751,2013 WL 5505741, at *2 (D.N.J.Oct. 1, 2013) (discussing the phases of treatment for
SVPs and explaining that “[a]s residents progress through the phases, they are expected to
discuss their sexual history and past sexual offenses. . . . [and] [r]esidents who ‘refuse to
participate in treatment in a meaningful way,’ including refusing to ‘discuss significant topics,’
are put on ‘Treatment Probation.’ Residents who do not improve their participation in treatment
are put on ‘Treatment Refusal status’”). Here, the Court analyzes the quantum of evidence
provided by the parties to determine whether Defendant Main (or his subordinates) would have
made the same treatment andhousing decisions absent Plaintiff’s filing of grievancesand
lawsuits.
Having reviewed the recordevidence in a light most favorable to Plaintiff,the Court
finds that the 2019 TPRC Report provides overwhelming evidence that Plaintiffengages in
Treatment Refusal by denyingand/or minimizing his sexual offenses,bydisruptinggroup
sessions by being verbally combative and volatile,and byperseverating on legal issues. As such,
the Court finds that Defendant Main (or his subordinates) would have made the same treatment
and housing decisions absent Plaintiff’s filing of grievances or lawsuits,and those decisions are
rationally related to penological interests, or more accuratelyhere, the treatment goals for SVPs.
Although Plaintiff disagrees with the 2019TPRC reportand the characterization of
himself as a Treatment Refuser,the only evidence he has provided on this issue beyond his
subjective opinion relates to his treatment progress in 2014. Although the DHS Defendants
admit Plaintiff was initially promoted to Phase 2 of treatment in 2014, they have provided
detailed evidence that Plaintiff was subsequently demoted to Phase 1 due to his Treatment
Refusal, namely his minimizing of his sexual offenses and his disruptive behavior. Indeed, Dr.
Silikovitz’s Confidential Report, which was prepared at the request of Plaintiffs public defender
in connection with his civil commitment appeal, does not address Plaintiff's Treatment Refusal
and other incidents that occurred after the date of the Confidential Report. The fact that
Plaintiffs own Statement of Disputed Material Facts denies and minimizes his history of sexual
offenses further corroborates the evidence presented by the DHS Defendants. Plaintiff's
subjective belief that he is participating in treatment and should be advanced to the next phase
and moved from the South Unit is not enough to rebut the overwhelming evidence presented by
the DHS Defendants or create an issue of fact for trial.
Because the DHS Defendants have met their burden to show the same decision defense
applies, the Court will grant summary judgment to Defendant Main on Plaintiffs remaining First
Amendment Retaliation claim.”
IV. CONCLUSION
For the reasons explained in this Opinion, the DHS Defendants’ motion for summary
judgment as to Defendant Main is GRANTED.!° An appropriate Order follows.
i lo
Madeline Cox Arleo, District Judge
United States District Court
DATED: July 31, 2020
Because the Court grants summary judgment based on the same decision defense, it need not
reach the issue of qualified immunity.
10 Plaintiff’ s motion to expedite is denied as Moot in light of this Opinion.