Opinion
DOCKET NO. A-1669-10T2
04-25-2012
LORENZO OLIVER, Plaintiff-Appellant, v. YVONNE LEE, LT. M. KADY, and DEPARTMENT OF CORRECTIONS, Defendants-Respondents.
Lorenzo Oliver, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Carla Pereira, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Fasciale.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6590-08.
Lorenzo Oliver, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Carla Pereira, Deputy Attorney General, on the brief).
Plaintiff Lorenzo Oliver, an inmate in the custody of the Department of Corrections (DOC), appeals from a November 7, 2008 order dismissing with prejudice his complaint against defendants DOC, Officer Yvonne Lee, and Lt. M. Kady pursuant to Rule 4:6-2(e). We vacated that order without prejudice, and remanded the case to accord the judge an opportunity to set forth his factual findings and legal conclusions, which he did in an October 21, 2010 written decision. We now affirm, but remand for issuance of a contemporary order.
Plaintiff's Notice of Appeal purports to appeal from a "final judgment, issued on October 21, 2010." Similarly, defendants state that the judge "issued a written opinion on October 21, 2010 granting [their] motion for summary judgment." However, the judge on remand did not issue an order or grant defendants' motion by the issuance or the express language of his written decision. Nonetheless, it is clear that on remand the judge intended the same disposition as the November 7, 2008 order dismissing plaintiff's complaint. We treat the written decision as if accompanied by an appropriate contemporary order dismissing the complaint with prejudice for failure to state a claim, R. 4:6-2(e), and remand for the judge to issue same.
The relevant facts of this case are set out in our first opinion. See Oliver v. Lee, No. A-2059-08 (App. Div. December 11, 2009) (slip op. at 1-4). We briefly summarize them here.
On October 14, 2007, plaintiff, an inmate, was washing dishes at East Jersey State Prison when he touched the buttocks of defendant Lee, a female DOC employee, who was standing behind him. The DOC charged plaintiff with sexual harassment and unauthorized physical contact, and transferred him to a detention area in Northern State Prison (NSP). On November 5, 2007, after an investigation and hearing, the DOC dismissed the charges.
Disciplinary infractions *.050 and .013, respectively, in violation of N.J.A.C. 10A:4-4.1.
Plaintiff filed a Writ of Mandamus on the same date requesting release from pretrial detention. On December 31, 2007, plaintiff sent a letter to New Jersey's Attorney General requesting that criminal charges be filed against defendant Lee for making a false report.
On August 12, 2008, plaintiff filed a complaint against defendants, alleging intentional infliction of emotional distress and false imprisonment. Defendants moved for summary judgment based on plaintiff's failure to file a notice of claim. Plaintiff then moved for an extension of time to respond to the summary judgment motion. On November 7, 2008, the judge issued an order denying plaintiff's motion for an extension and a separate order dismissing plaintiff's complaint with prejudice pursuant to Rule 4:6-2(e).
Although the order dismissing plaintiff's complaint is entitled "order granting summary judgment against plaintiff," the complaint was properly dismissed pursuant to Rule 4:6-2(e), which provides that a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." The Rule further provides that if such a motion is made and "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by [Rule] 4:46." "The primary distinction between a motion under [Rule] 4:6-2(e) and [Rule] 4:46 is that the former is based on the pleadings themselves." Pressler and Verniero, Current N.J. Court Rules, comment 4.1.2 on R. 4:6-2(e) (2012).
On the first appeal, we concluded that "[t]he record supplied to us [did] not contain any transcript, memorandum, or other writings setting forth the trial court's findings of fact and conclusions of law with respect to this entire matter." Id. at 4. We therefore "vacat[ed] the November 7, 2008[] orders without prejudice, and remand[ed] to afford the court the opportunity to set forth its findings of fact and conclusions of law with respect to the motions decided by it and to ascertain whether the plaintiff's motion for leave to file notice of a late claim was in fact timely received by the court and, if so, whether it had merit." Id. at 7.
On October 21, 2010, the judge issued a three-page written opinion. In relevant part, he stated:
The Court finds that Yvonne Lee and Lt. M. Kady are public employees of the [DOC], a public entity under N.J.S.A. 59:1-1. Plaintiff in this case has failed to file a notice of his claim within 90 days of the accrual of his claim pursuant to N.J.S.A. 59:8-8. Here[,] the date of accrual is November 5, 2007, the end date of confinement and cause of plaintiff's damages. The accrual date of November 5, 2007[] would require the Plaintiff to file a notice of claim to the [DOC] by February[] 5[,] 2008. Plaintiff failed to file a notice of claim by this date and Defendants were only given notice of the claim upon receiving the complaint on or around August 28, 2008. The Plaintiff in this case has also failed to file []either a "late notice of claim" []or any affidavits or support constituting extraordinary circumstances for his failure to file notice of his claim within the ninety day period under [] N.J.S.A. 59:8-9. The Court has no record in the Superior Court, Law Division's AutomatedThis appeal followed.
Case Management System []or in the case file of the Plaintiff making such application to the Court for consideration.
Since the Plaintiff has failed to file a notice of claim within the ninety days required by N.J.S.A. 59:8-8 and has also failed to file application to the court for permission to file a late notice of claim under N.J.S.A. 59:8-9, Defendant's motion for Summary Judgment was granted on November 7, 2008.
Plaintiff's motion for an extension of time to answer for summary judgment was also denied on November 7, 2008. Plaintiff in this case filed a motion rather than an answer or an opposition to the motion for summary judgment. Plaintiff sought to delay the time of the motion for summary judgment by filing the motion to extend. The Court finds that the Plaintiff did indeed have adequate time to respond to the Summary Judgment Motion as reflected in the documents that were filed with the Court and, therefore, denied the motion.
"Courts should approach motions to dismiss for failure to state a cause of action pursuant to Rule 4:6-2(e) with caution." Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 79 (1993). Our review of a complaint dismissed under Rule 4:6-2(e) is "limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart v. Sharp Elecs., 116 N.J. 739, 746 (1989). Thus, the Supreme Court has explained that
a reviewing court searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary. At this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. For purposes of analysis plaintiffs are entitled to every reasonable inference of fact. The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.
[Ibid. (citations and internal quotation marks omitted).]
As a prerequisite to filing a lawsuit against a public entity, the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, mandates that "[n]o action shall be brought against a public entity or public employee under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-3. As part of the required procedural steps that a plaintiff must take, N.J.S.A. 59:8-8 provides:
A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. . . . The claimant shall be forever barred from recovering against a public entity or public employee if:In his or her discretion, a judge may permit a plaintiff "to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby." N.J.S.A. 59:8-9. The exception further provides:
a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9 . . . .
Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter . . . .
The TCA's notice provisions are "not intended as 'a trap for the unwary.'" Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1991)). The underlying goals are:
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the
indebtedness or liability that it may be expected to meet.
[Velez v. City of Jersey City, 180 N.J. 284, 290 (2004) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).]
Here, the parties do not dispute that plaintiff failed to file a timely notice of claim pursuant to N.J.S.A. 59:8-8. Plaintiff asserts that on October 30, 2008, he "turned two envelopes containing the motion rfor permission to file a late notice of claim, pursuant to N.J.S.A. 59:8-9,] over to [NSP] mailroom employees for them to mail to the court." He argues that we should adopt the "prison mailbox rule," set forth in Houston v. Lack, 487 U.S. 266, 277, 108 S. Ct. 2379, 2385, 101 L. Ed. 2d 245, 255 (1988), which deems a notice of appeal to be "filed" when a prisoner "deliver[s] it to the prison authorities for forwarding to the court clerk." See also United States v. Fiorelli, 337 F.3d 282, 289 (3d Cir. 2003) (stating that "[u]nder Houston, the prison mail room is essentially 'an adjunct of the clerk's office,' and a jurisdictionally sensitive document is deemed filed on deposit" (quoting In re Flanagan, 999 F.2d 753, 759 (3d Cir. 1993))).
We decline to consider whether such a rule would apply. Plaintiff has produced no proof to support his assertion that he "placed [a motion for permission to file a late claim of notice] in the hands of the mailroom employees at [NSP] to send to the court." The printout from the Law Division's automated case management system, which is included in the record before us and reflects documents filed in this case, does not show that a late notice of claim was filed. In his written decision, the judge confirms that there was "no record in the Superior Court, Law Division's Automated Case Management System []or in the case file of the Plaintiff making such application to the Court for consideration." Furthermore, plaintiff has provided no proof of having delivered legal documents to the NSP mailroom on October 30, 2008, and his brief in opposition to defendants' summary judgment motion, which he attempted to file out-of-time on November 9, 2008 and has included in his appendix on appeal, makes no mention of his alleged October 30, 2008 motion for permission to file a late notice of claim. One would expect that if plaintiff had attempted to file a motion on October 30, 2008 when he claims, he would have discussed such a key document, indeed relied upon it, in a subsequent brief arguing against dismissal on the very grounds that he intended the alleged motion to cure.
We also note that there is no evidence to support plaintiff's assertion that "defendants interfered with plaintiff's right to court access by preventing his legal mail from being [sent] to the court," or that "defendants found out that the mail was turned over to them on Oct. 30, 2008[,] and they did not want to turn that evidence over to the plaintiff."
Plaintiff further asserts that the judge should have found that he was in substantial compliance with the TCA notice provisions. He argues that he gave defendants notice by filing a Writ of Mandamus, two requests with the DOC for transfer, and a letter with the Attorney General's Office requesting that it bring criminal charges against defendant Lee.
There is no support for plaintiff's argument that he was not required to file a notice of claim because "he was waiting to [hear] from the Attorney General's Office," or because the claim "stems from a crime."
The doctrine of substantial compliance with the statute serves "the purpose of alleviating the hardship and unjust consequences which attend technical defeats of otherwise valid claims." Anske v. Borough of Palisades Park, 139 N.J. Super. 342, 347 (App. Div. 1976) (emphasis added) (citing Lameiro v. W. N.Y. Bd. of Educ., 136 N.J. Super. 585 (Law Div. 1975); Dambro v. Union Cnty. Park Comm'n, 130 N.J. Super. 450 (Law Div. 1974)). "'[S]ubstantial compliance means that the notice has been given in a way, which though technically defective, substantially satisfies the purposes for which notices of claims are required.'" Lebron v. Sanchez, 407 N.J. Super. 204, 216 (App. Div. 2009) (quoting Lameiro, supra, 136 N.J. Super. at 588). We have concluded that no substantial compliance existed where, "[a]lthough the information which plaintiff supplied to the municipal clerk's office ordinarily would satisfy the statutory requirements, it was not in written form," which is "essential under the statute." Anske, supra, 139 N.J. Super. at 348 (citing Lameiro, supra, 136 N.J. Super. at 588); see also Wunschel v. City of Jersey City, 96 N.J. 651, 667-68 (1984) (no substantial compliance because workers' compensation petition would not give notice of intention to assert wrongful death claim against public entity); Lameiro, supra, 136 N.J. Super. at 588 (no substantial compliance as against public school where attorney wrote letter to school principal asking for name and address of student who injured client); but see Dambro, supra, 130 N.J. Super. at 458-59 (substantial compliance against municipality where attorney relied on tax assessor's incorrect denial of municipality's ownership).
Here, the documents to which plaintiff refers do not bring him into substantial compliance with the TCA's notice requirements. None of those documents even alluded to plaintiff's intention to file a civil suit, and this case does not present the kind of mere technical oversight that should not defeat an otherwise valid claim. See Anske, supra, 139 N.J. Super. at 347. Rather, plaintiff failed to file a notice of claim and to cure that failure by seeking permission to file a late notice of claim. The judge did not err by dismissing the complaint.
Plaintiff also argues that the judge abused his discretion by denying plaintiff's request for an extension of time to respond to defendants' motion for summary judgment. He contends that he required more time to prepare opposition because he could not obtain a pass to use the prison law library. On remand, the judge found that plaintiff had adequate time to oppose summary judgment as reflected by other documents that plaintiff had filed.
The record indicates that plaintiff did not seek reconsideration of the denial.
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Our determination on appeal that plaintiff was not in substantial compliance with the statute alleviates the need to consider whether the judge abused his discretion in not granting plaintiff additional time to oppose summary judgment. Moreover, the one-year time period to apply for permission to file a late notice of claim, N.J.S.A. 59:8-9, had already elapsed when the judge denied the extension. Thus, even if plaintiff had been given more time to formulate opposition to the summary judgment motion, he was out of time to cure his failure to file a notice of claim, and any extension of time to respond to the summary judgment motion would not have changed that.
Affirmed, but remanded for issuance of an order dismissing plaintiff's complaint with prejudice pursuant to Rule 4:6-2(e).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION