On appeal from Superior Court, Law Division, Middlesex County.
Michels, Skillman and Landau. The opinion of the court was delivered by Landau, J.s.c. (temporarily assigned).
Plaintiff Alexander Ciccolello (Ciccolello) appeals from a summary judgment granted in favor of defendants, John Feconda, the Middlesex County Director of Corrections (Feconda) and the Middlesex Board of Freeholders (Middlesex), under the two year statute of limitations of N.J.S.A. 59:8-8. We affirm for the reasons discussed herein.
For purposes of the motion and this appeal it must be assumed that Ciccolello's cause of action arose on September 6,
1980 when he was allegedly beaten during his incarceration at Middlesex County Correctional Center.
Ciccolello was released from county custody on December 30, 1980, and was reincarcerated in a State institution on October 21, 1981. He commenced this action on May 8, 1984, while in custody.
Ciccolello relies upon N.J.S.A. 59:5-3, which provides:
No action shall be commenced by or on behalf of a prisoner against a public entity or public employee until such prisoner shall be released from institutional confinement. For the purposes of the claims notification requirements and the statute of limitations contained in chapter 8 of this act, a prisoner's claim shall accrue upon his release from institutional confinement; provided however that a prisoner may file a notice of claim in accordance with the procedures set forth in chapter 8 at any time after an injury and nothing in this act shall bar administrative review and settlement of that claim prior to his release from institutional confinement.
This statute was considered in Holman v. Hilton, 542 F. Supp. 913 (D.N.J.1982) aff'd 712 F.2d 854 (3 Cir.1983), where on July 9, 1982, its provision deferring ability of a prisoner to commence an action against a public entity or public employee until released from institutional confinement was declared to violate the due process clause of the Fourteenth Amendment.*fn1
Ciccolello asserts that by reason of the prevailing statutory prohibition against commencement of an action until released from custody, the two year statute of limitations did not commence to run against him until July 9, 1982 when the unconstitutionality of the litigation bar in N.J.S.A. 59:5-3 was adjudicated. Although Ciccolello asserts that the Tort Claims Act provisions in N.J.S.A. 59:5-3 governed his claim until declared unconstitutional, he has chosen to ignore the applicable limitations
provisions in section 8 of that act. N.J.S.A. 59:8-8 ...