NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                                 ________

                                No. 07-3357
                                _________


                           EDWARD SALERNO,
                                       Appellant
                                 v.

   JON CORZINE, N.J. Governor, in his official and individual capacity;
              RICHARD CODY, N.J. Former Acting Governor,
                    in his official and individual capacities;
             JAMES E. MCGREEVEY, N.J. Former Governor,
                    in his official and individual capacities;
               N.J. DEPARTMENT OF HUMAN SERVICES;
                  N.J. DIVISION OF MENTAL HEALTH;
                   MS. LORNA HINES-CUNNINGHAM,
       Assistant Division Director of Department of Human Services,
                   in her official and individual capacities;
               MS. JOAN RICHARDSON BOWSER, Esquire,
  First Assistant Public Defender, in her official and individual capacities;
          MR. PATRICK REILLY, Deputy Public Defender, in his
                       official and individual capacities;
        OFFFICE OF THE PUBLIC DEFENDER, TRENTON,N.J.;
       N.J. DEPTARTMENT OF CORRECTIONS, TRENTON, N.J.;
 DEVON BROWN, N.J., Department of Corrections Former Commissioner,
                    in his official and individual capacities;
         JOHN MAINE, CEO, N.J. Special Treatment Unit-Annex,
                    in his official and individual capacities;
   GRACE ROGERS, N.J. Special Treatment Unit-Annex Administrator,
                    in her official and individual capacities;
            PAUL LAGANA, N.J. Special Treatment Unit-Annex,
                    in his official and individual capacities;
      MERRILL MAIN, Director, N.J. Special Treatment Unit-Annex,
                    in his official and individual capacities;
MS. TINA SPAGNUOLO, Unit Director, N.J. Special Treatment Unit-Annex,
                    in her official and individual capacities;
DR. GREGORY GAMBONE, Psych, in his official and individual capacities;
             JENNA CACCESE, Former Program Coordinator,
                   in her official and individual capacities;
              MARIELENA MOTTA, Program Coordinator,
                 in her official and individual capacities;
                  RUTH ROTH, Recreation Supervisor,
                 in her official and individual capacities;
           LOU NORTON, Vocational Rehabilitation Counselor,
                 in his official and individual capacities;
    DR. CAROL LESTER, Psych, in her official and individual capacities;
   DR. PHILLIP LEAVITT, Psych, in his official and individual capacities;
        DR. KIREEV, Psych, in her official and individual capacities;
     TOM CALABRESE, Psych, in his official and individual capacities;
             DR. EPPELLITTO, Psych, S.T.U. Kearney, N.J.,
                 in his official and individual capacities;
                MR. DEVON BULLARD, Social Worker,
                 in his official and individual capacities;
       MS. JULIE MCBRIDE, in her official and individual capacities;
    MR. REEVES, Social Worker, in his official and individual capacities;
  MR. RODRIGUEZ, Social Worker, in his official and individual capacities;
  MS. THOMPSON, Social Worker, in her official and individual capacities;
       MR. J. MILES, BMPT, in his official and individual capacities;
     DR. A. LEVINSON, Psych, in his official and individual capacities

                                 ________

                                No. 08-1019
                                _________


                           TERRY TRAYLOR,
                                     Appellant
                                  v.

    MERRILL MAIN, Clinical Director of the Dept. of Human Services;
LOUIS NORTON, Rehabilitation/Job Counselor of the Dept. of Human Services;
  TESS KEARNEY, Program Coordinator of the Dept. of Human Services;
JACQUELINE OTTINO, Program Coordinator of the Dept. of Human Services;
     PAUL LAGANA, Asst. Superintendent of the Dept. of Corrections

                                 ________

                                No. 09-2789
                                _________



                                     2
                                  JOSEPH ARUANNO,
                                             Appellant
                                          v.

                      CINDY SWEENEY, Assistant Administrator;
                        MERRILL MAIN, D.H.S. DIRECTOR;
                           GOVERNOR JON CORZINE

                                        ________

                      On Appeal from the United States District Court
                              for the District of New Jersey
          District Judges: Honorable Faith S. Hochberg (D.C. No. 06-cv-03547)
                           Honorable Dennis M. Cavanaugh (D.C. No. 07-cv-02751)
                           Honorable Susan D. Wigenton (D.C. No. 2-08-cv-04449)

                                         _______


                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 24, 2011

                Before: SLOVITER, GREENAWAY, JR., Circuit Judges
                            and POLLAK,* District Judge

                                (Filed: October 26, 2011)

                                         ______

                                        OPINION
                                         ______




*

        Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern
    District of Pennsylvania, sitting by designation.
                                             3
SLOVITER, Circuit Judge.

       Edward Salerno, Terry Traylor, and Joseph Aruanno filed separate pro se actions

under 42 U.S.C. § 1983, claiming that various state officials (“Defendants”) violated their

rights under the First Amendment. The District Court entered summary judgment against

Salerno and dismissed the complaints of Traylor and Aruanno for failure to state a claim.



       In the cases of Salerno and Traylor, the District Court found in favor of the

Defendants on qualified immunity grounds. The District Court dismissed Aruanno’s

complaint after finding that he had previously asserted the same claims unsuccessfully

before the District Court and this court on appeal. All three Appellants timely appealed.

We consolidated their appeals and appointed pro bono counsel.1

                                             I.

       Appellants are civilly confined at the Special Treatment Unit (“STU”) in New

Jersey pursuant to the New Jersey Sexually Violent Predators Act (“SVPA”). As part of

their treatment at STU, Appellants were encouraged to participate in “discussion

therapy,” during which residents join to discuss their sexual histories. Appellants refused

to participate in this therapy and, as a result, were deprived of employment and certain

other benefits, including television and hygienic items. Appellants then filed their

complaints under 42 U.S.C. § 1983 alleging that Defendants retaliated against them in


1

   We express our appreciation to Christopher R. Murray and Ashley M. Sprague of
Covington & Burling LLP who undertook to act pro bono in the highest tradition of the
profession.
                                             4
violation of their rights under the First Amendment. In addition to damages, each

Appellant sought non-monetary relief.

         Defendants filed a Motion to Dismiss Salerno’s First Amendment claim which

they supported by an affidavit. The District Court treated the motion to dismiss as a

Motion for Summary Judgment which it granted, concluding that Defendants were

entitled to qualified immunity.2 In considering Traylor’s claims, the District Court also

found that Defendants were entitled to qualified immunity but dismissed his complaint

under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be

granted. Finally, the Court dismissed Aruanno’s claim on the ground that “the allegations

set forth in the [c]omplaint . . . appear to be subsumed by the allegations made by

[Aruanno in a previous action].” App. at 65; see also App. at 67.3

         Jurisdiction was proper in the District Court based on 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the District Court’s grant

of a motion to dismiss, see Alston v. Parker, 

, 232-33 (3d Cir. 2004), as well

as its entry of summary judgment, see Renchenski v. Williams, 

, 324 (3d Cir.

2010).


2

    Additionally, the Salerno Court found that Defendants Devon Brown, Grace Rogers,
Paul Lagana, and John Main were entitled to summary judgment because they are
“supervisory” employees and because respondeat superior liability is not a basis for §
1983 claims. See Salerno v. Corzine, No. 06-3547, 

, at *2 n.6 (D.N.J.
July 25, 2007) (citing Monell v. New Jersey City Dept. of Soc. Serv., 

(1978)). Salerno does not challenge this decision on appeal.
3

   The District Court dismissed Aruanno’s complaint sua sponte pursuant to 28 U.S.C. §
1915(e)(2)(B).
                                             5
                                             II.

       Appellants contend that the District Court improperly relied on qualified immunity

to dispose of Salerno’s and Traylor’s claims for equitable relief under § 1983. We agree.

However, we find that the District Court correctly dismissed Aruanno’s claims under the

doctrine of claim preclusion.

       Claim preclusion “bars a party from initiating a second suit against the same

adversary based on the same ‘cause of action’ as the first suit.” Duhaney v. Att’y Gen. of

U.S., 

, 347 (3d Cir. 2010). Claim preclusion is properly applied where there

has been: “(1) a final judgment on the merits in a prior suit involving; (2) the same parties

or their privies; and (3) a subsequent suit based on the same causes of action.” Sheridan

v. NGK Metals Corp., 

, 260 (3d Cir. 2010). Here, the “same cause of

action” and “final judgment on the merits” elements are easily satisfied, as Aruanno

raised his current allegations in a previous action before the District Court, which the

Court dismissed for failure to state a claim - a judgment which this court affirmed.4 See

Aruanno v. Spagnuolo, No. 07-2056, 

(D.N.J. Oct. 15, 2007), aff’d,

292 F. App’x 184 (3d Cir. 2008).

       The “same parties or their privies” element is also satisfied in Aruanno’s case.

Aruanno brought his previous action in the District Court against four individuals at the

STU, including Merrill Main. Aruanno’s current complaint also names Merrill Main but

adds the former governor of New Jersey and the STU’s assistant administrator as
4

    Dismissal for failure to state a claim is a final judgment on the merits for claim
preclusion purposes. See Federated Dep’t Stores, Inc. v. Moitie, 

, 399 n.3
(1981).
                                              6
defendants. The term “privity” is used merely as “a way to express the conclusion that

nonparty preclusion is appropriate on any ground.” Taylor v. Sturgell, 

, 894

n.8 (2008). Thus, the various connections between STU employees and the New Jersey

Governor’s Office provide ample grounds to find the privity requirement satisfied. For

example, the primary budgeting source for the STU is the state,5 and STU employees

advance common goals as agents of a single employer. This alignment of interests

satisfies the privity requirement and precludes Aruanno’s current action.

       On the other hand, the District Court erred by applying qualified immunity to bar

the claims of Salerno and Traylor for prospective relief. Qualified immunity protects

government officials from civil liability for any action that “does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 

, 818 (1982). However, it is well established

that qualified immunity does not bar actions for prospective relief, such as an injunction

or declaratory judgment. See, e.g., Hill v. Borough of Kutztown, 

, 244 (3d

Cir. 2006) (“[T]he defense of qualified immunity is available only for damages claims –

not for claims requesting prospective injunctive relief.”); Presbyterian Church (U.S.A.) v.

United States, 

, 527 (9th Cir. 1989) (“Qualified immunity is an affirmative

defense to damage liability; it does not bar actions for declaratory or injunctive relief.”).
5

    New Jersey’s budget analysis demonstrates that New Jersey’s Department of
Corrections is funded primarily by state funds. See Office of Legislative Services,
Department of Corrections/State Parole Board: Analysis of the New Jersey Budget, Fiscal
Year 2011-2012, at 4, available at http:// http://www.njleg.state.nj.us/
legislativepub/budget_2012/DOC_analysis_2012.pdf. The Department of Corrections
operates New Jersey’s facilities designated for sexually violent predators. See N.J. Stat.
Ann. § 30:4-27.34(a) (West 2011).
                                               7
       In addition to their claims for damages, Salerno and Traylor pleaded claims for

prospective relief. App. at 100. (Salerno’s complaint, seeking “[t]o be restored back to

the position occupied before” the claimed violations); App. at 198 (Traylor’s complaint,

seeking injunctive and declaratory relief). Therefore, the District Court erred in

concluding that qualified immunity barred all of Salerno and Traylor’s First Amendment

claims. Although we agree with Defendants that Salerno and Traylor did not squarely

raise this issue before the District Court,6 this court has discretionary power to address

issues that are raised for the first time on appeal, particularly where: 1) the “argument

omitted in the District Court is a pure question of law,” 2) the proper resolution of the

legal question is “reasonably certain,” and 3) failing to consider the omitted argument

would “result in . . . substantial injustice.” Bagot v. Ashcroft, 

, 256 (3d Cir.

2005). That is precisely the situation here, as it is clear that the doctrine of qualified

immunity does not bar claims for prospective relief – a pure question of law – and failure

to consider this issue would unjustly deprive Salerno and Traylor of an opportunity to

assert their § 1983 claims.7
6

     “[T]he crucial question regarding waiver is whether [Appellants] presented the
argument with sufficient specificity to alert the district court,” Keenan v. City of Phila.,

, 471 (3d Cir. 1993), and Appellants’ general claims for injunctive and
declaratory relief were not enough to inform the District Court of their present argument
that qualified immunity does not bar such claims.
7

     Although the District Court – while conducting its qualified immunity analysis in
Traylor’s case – stated in passing that “Defendants did not violate Plaintiff’s
constitutional rights,” the Court’s decision to deny Traylor’s claim is supported only by
its reasoning that the right not to participate in sex offender treatment is not clearly
established. App. at 58. Thus, as in Salerno’s case, we remand Traylor’s action for the
Court to consider his First Amendment claims in the first instance.
                                               8
                                            III.

       For the foregoing reasons, we will affirm the District Court’s order dismissing

Aruanno’s claim in all respects. However, we will reverse the District Court’s orders

dismissing Salerno’s and Traylor’s § 1983 claims for prospective relief. We will remand

their claims to the District Court for further proceedings consistent with this opinion.




                                              9