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Byrd v. Manning

Decided: January 29, 1992.

JEFFREY BYRD, PLAINTIFF-APPELLANT,
v.
ANDREW MANNING, INDIVIDUALLY AND AS MAYOR OF THE BOROUGH OF SEA BRIGHT; CHARLES ROONEY; JAMES FOORSMAN; C. REED MURPHY; WILLIAM FITZPATRICK; LINDA HOORSAGER; JOAN BREARLEY, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE COUNCIL OF THE BOROUGH OF SEA BRIGHT; THOMAS JOHNSON, INDIVIDUALLY AND IN HIS CAPACITY AS THE CHIEF OF POLICE OF THE BOROUGH OF SEA BRIGHT; BOROUGH OF SEA BRIGHT, A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY; WILLIAM MOORE, INDIVIDUALLY AND AS AN OFFICER IN THE SEA BRIGHT BOROUGH POLICE DEPARTMENT; JOHN SORRENTINO, INDIVIDUALLY AND AS AN OFFICER IN THE SEA BRIGHT POLICE DEPARTMENT; AND STEVEN SPAHR, INDIVIDUALLY AND AS AN OFFICER IN THE SEA BRIGHT BOROUGH POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Monmouth County.

Havey and Conley. The opinion of the court was delivered by Havey, J.A.D.

Havey

HAVEY, J.A.D.

Plaintiff appeals from an order for summary judgment dismissing his action instituted against defendants under the federal Civil Rights Act, 42 U.S.C.A. § 1983. In dismissing the complaint, the trial Judge found that the action was time-barred under N.J.S.A. 2A:14-2, since it was not instituted within two years from the date plaintiff's cause of action accrued. On appeal, plaintiff argues that the statute of limitations should be tolled because: (1) the legislative objectives of the statute were satisfied; (2) defendants contributed to plaintiff's delay in filing the complaint; (3) plaintiff would have risked waiving his

constitutional right against self-incrimination in a related criminal proceeding had he filed his civil complaint in a timely fashion, and (4) he was under duress inflicted by defendants which caused the delay. We affirm.

On January 2, 1988, defendants John Sorrentino, Steven Spahr and William Moore, Borough of Sea Bright police officers, arrested plaintiff outside a local tavern for using offensive language. Defendants claimed that during the arrest, plaintiff kicked one of the officers in the groin and butted him in the face as they were placing plaintiff in a police car. Plaintiff was charged with disorderly conduct, N.J.S.A. 2C:33-2b, resisting arrest, N.J.S.A. 2C:29-2, and aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5)(a).

On April 5, 1988 plaintiff filed a cross-criminal complaint against Officers Sorrentino and Spahr charging them with aggravated assault, N.J.S.A. 2C:12-1b(1), and official misconduct, N.J.S.A. 2C:30-2. On May 6, 1988, the Monmouth County Grand Jury "no billed" the charges against Officers Sorrentino and Spahr. It also declined to indict plaintiff and recommended that the aggravated assault charges against him be downgraded to simple assault, N.J.S.A. 2C:12-1a. The disorderly conduct, simple assault and resisting arrest charges were remanded to the Sea Bright Municipal Court and transferred to the Rumson Municipal Court for prosecution as disorderly persons offenses.

On May 11, 1989, plaintiff filed motions in the Law Division and the United States District Court for the District of New Jersey, seeking orders permitting him to take pre-complaint depositions of defendants Sorrentino, Spahr and Moore pursuant to R. 4:11-1 and Fed.R.Civ.P. 27, respectively. Plaintiff's certifications supporting the motions state that he "expects to bring an action in the United States District Court based upon a violation of his civil rights . . . against" defendants. The federal

court denied plaintiff's petition on June 19, 1989. Plaintiff's state petition was denied on June 23, 1989 by Judge Fundler, who noted on the order:

No authority for discovery at this time cited. No basis for perpetuation of evidence or testimony present in supporting papers. No New Jersey Court action contemplated per certification. Rule 4:11-1 not applicable and procedural requirements not complied with if it were.

After hearings conducted on July 12 and August 30, 1989, plaintiff was convicted in the Rumson Municipal Court of two counts of simple assault and acquitted on the resisting arrest charges. The original charge of disorderly conduct was dismissed pursuant to In re H.D., 206 N.J. Super. 58, 501 A.2d 1016 (App.Div.1985), which had declared N.J.S.A. 2C:33-2b unconstitutional. On February 9, 1990, plaintiff was again convicted of simple assault after his trial de novo in the Law Division, Criminal Part.*fn1

On February 23, 1990, 52 days after the two-year statute of limitations expired, plaintiff filed a § 1983 action against defendants in the federal district court seeking damages for injuries he allegedly sustained during his January 2, 1988 arrest. Plaintiff filed an identical complaint in the Superior Court, Law Division on March 30, 1990.*fn2 By order dated August 29, 1990, the federal court dismissed the complaint as being time-barred. Plaintiff thereupon moved for summary judgment in the state proceedings, arguing that his failure to institute suit within the two-year limitation was excusable, and defendants cross-moved for summary judgment. An order granting defendants' summary judgment motion dismissing plaintiff's complaint was

entered on June 25, 1990.*fn3 On September 28, 1990, plaintiff's motion for reconsideration of the ...


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