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July 9, 1982

Charles C. HOLMAN, Jr., Plaintiff,
Gary J. HILTON, Superintendent, New Jersey State Prison at Trenton; Alan R. Hoffman, Former Superintendent, New Jersey State Prison at Trenton; William Baum, Investigations Officer, New Jersey State Police; Lawrence Ashton, Lieutenant, New Jersey State Prison; James Williams, Lieutenant, New Jersey State Prison at Trenton; individually and in their official capacities, Defendants

The opinion of the court was delivered by: DEBEVOISE

This summary judgment motion presents a challenge to the constitutionality of N.J.S.A. 59:5-3, a New Jersey statute which bars the commencement of any action in the state courts "by or on behalf of a prisoner against a public entity or public employee until such prisoner shall be released from confinement." For the reasons which follow, I conclude that the statute is unconstitutional and will grant judgment in plaintiff's favor.

1. Background

 The parties are in agreement upon the facts essential to a resolution of the motion.

 Plaintiff, Charles C. Holman, was convicted of murder in the state courts of New Jersey in 1970 and sentenced to a life term of imprisonment. From the time of his conviction until December, 1981, he was incarcerated in various institutions in the New Jersey state prison system. *fn1"

 On August 2, 1976, while an inmate at Trenton State Prison, plaintiff filed a complaint in replevin in the District Court of Mercer County, New Jersey. Naming several prison officials as defendants, plaintiff sought the return of certain items of impounded personal property or, in the alternative, damages of $ 613. In his state court complaint, plaintiff made the following allegations:

 -During the early morning hours of January 20, 1976, following an aborted escape attempt from the prison wing in which he was housed, guards entered the wing, ordered all inmates, including plaintiff, to strip and escorted them to "strip" cells in a separate area of the prison. Prison officials then searched the emptied cells for contraband.

 -Plaintiff then prepared a detailed list of his missing property utilizing mail room receipts and submitted the list to his wing supervisor. Among the items listed were: 65 stereo record albums, a Timex quartz watch and a set of diamond engagement rings. When no response was forthcoming from the wing supervisor, plaintiff directed a letter to the superintendent of the prison requesting the return of his property. Still, however, his possessions were not returned.

 -On May 28, 1976, plaintiff served upon Alan R. Hoffman, Superintendent of Trenton State Prison, Lt. Lawrence Ashton, his wing supervisor, and Major William Baum, the Head Investigations Officer of the New Jersey State Police, a formal "Notice of Demand" for the return of his property, pursuant to New Jersey Court Rule 4:61-2. *fn2" When this approach failed, he commenced his action in replevin on August 26, 1976 in the Mercer County District Court.

 Shortly after plaintiff filed his state court action, the defendants moved for summary judgment, arguing that they did not have the property sought to be replevied and that the action for damages was barred by N.J.S.A. 59:5-3. *fn3"

 The state court granted the defendants' motion and dismissed the action, reasoning as follows:

The Court is satisfied that the alternative relief, that is damages in lieu of possession, is barred by N.J.S.A. 59:5-3.
The sole remaining issue in the case is whether or not there is a genuine issue of fact with regard to the existence, location and possession of the specific items of personal property set forth in the complaint.
Plaintiff alleges that the property was solely in the control of the defendants at the time of its disappearance and the Court accepts this argument. The defendants' affidavits filed in support of the motion to dismiss merely indicate that the defendants do not have any of the items in their possession nor do they know of their whereabouts and to the best of their knowledge they are nowhere under the individual defendant's (sic) control.
Although this controversy would appear to set up an issue of fact namely whether the particular items are presently at the State Prison, the Court is of the opinion that a fact finding hearing with regard to this issue would be meaningless. Assume that as a result of such a hearing the Court finds that the property is indeed located at the State Prison and the Court enters a judgment for possession in favor of the plaintiff. If it is indeed the intent of the defendants not to return this property to the plaintiff all they need to do is remove or destroy the property prior to the appearance of the Court Officer charged with enforcing the judgment for possession. In that event, the plaintiff herein would be entitled to the alternative damages prayed for in his complaint, possibly damages for unlawful detention and possibly punitive damages, which causes of action would have to abide his release from prison.
The Court accepts the affidavits of the defendants as implying, in view of their positions, that a search of the State Prison has been made and that these articles do not exist on the premises or in the custody of any State Agency, including the state police. The complaint is dismissed and the plaintiff is left to his remedies for damages upon his release from prison.

 Subsequent to the dismissal of his state court lawsuit, plaintiff filed two more claims with Trenton State Prison authorities seeking the return of lost, stolen or destroyed property or damages for the value of the property. In 1978, plaintiff petitioned the new Trenton State Prison Superintendent, Gary J. Hilton, for the return of "a substantial amount of property which included shirts, shoes, nylon underwear, (shirts and shorts), and many other items" which had been confiscated from the Sons of Diogenes Jaycees, prison chapter, of which plaintiff was the President. He was not, however, successful in obtaining the return of this property.

 In 1978 and 1979, plaintiff submitted a number of claims to Superintendent Hilton and other Trenton State Prison officials seeking reimbursement for personal property which he alleged to have been destroyed in an electrical fire in his Trenton prison cell shortly after his forceable transfer to Rahway State Prison in August, 1977. The items plaintiff sought recovery for on this occasion included many articles of clothing, 4 law books, a dictionary, 10 reading books and 30 cans of food. On March 15, 1979, an officer of the prison issued a written determination that: due to "Holmans (sic) prior knowledge of the impending transfer to Rahway, and his refusal to comply with (an order which included) the packing of his personal property... (t)he Institution will not assume the responsibility for the items alleged to be lost."

 On August 13, 1979, plaintiff instituted the present action under 42 U.S.C. § 1983. Contending that "the lost (sic) and/or destruction of (his) personal property and belongings without due process of law and just compensation violates (his) rights under the Fifth and Fourteenth Amendments" and that "N.J.S.A. 59:5-3 ... violates the due process and equal protection clauses of the Fifth and Fourteenth Amendments," plaintiff sought, among other relief, a declaratory judgment that "the application and operation of the New Jersey statute in question... violate plaintiffs' (sic) rights under the United States Constitution." By letter dated December 18, 1981, plaintiff indicated his desire to move for summary judgment as to the constitutional validity of N.J.S.A. 59:5-3 alone. Arguments ...

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