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JOHNSON v. DOES

January 17, 1997

REUBEN JOHNSON, Plaintiff,
v.
JOHN DOES, et al., Defendants.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Defendants, County of Camden and Camden County Prosecutor's Office, have moved for partial summary judgment, pursuant to Fed. R. Civ. P. 56, on Plaintiff's common law tort claims contained in the Fourth through Seventh Counts of Plaintiff's complaint, for failure to comply with the notice provisions of the New Jersey Tort Claims Act, N.J.S.A. §§ 59:1-1 et seq. The issue presented by Defendants' motion involves a question of statutory interpretation never addressed by the New Jersey Supreme Court, specifically, whether the failure of a plaintiff to respond to a "personalized" Notice of Claim Form adopted by a public entity pursuant to § 59:8-6 of the New Jersey Tort Claims Act *fn1" should operate to bar the claim? For the reasons set forth below, I conclude that based upon the unique facts and circumstances of this case, the Plaintiff's failure to respond to the County's Claim Form, requires the dismissal of Plaintiff's state law claims asserted against the County and the Prosecutor's Office. Accordingly, Defendants' motion will be granted.

 I. Procedural Background

 Plaintiff, Reuben Johnson, contends that on or about August 15, 1994, he was approached at a motel located on Charleston Avenue, in the Borough of Lawnside, Camden County, New Jersey, by police officers from the Borough of Lawnside who allegedly stopped, searched, harassed and injured the Plaintiff while attempting to detain and arrest him illegally.

 On November 4, 1994, Plaintiff filed a Notice of Tort Claim with the Clerk of the County of Camden. (Defendants' Brief, Ex.2). Shortly thereafter, on November 18, 1994, the County of Camden sent counsel for the Plaintiff a detailed tort claims questionnaire, pursuant to N.J.S.A. § 59:8-6. *fn2" (Defendants' Brief, Ex.3). The questionnaire expressly provided that, "under the scheme of the New Jersey Tort Claims Act, a governmental entity is afforded at least six months from the date of the receipt of a completed claim form to review and settle meritorious claims. Failure to provide complete answers to all questions and/or the withholding of information may result in forfeiture of the claimant's rights." (Defendants' Brief, Ex.6) (emphasis in original).

 When Plaintiff failed to complete the questionnaire in a timely fashion, Scibal Associates, the claims administrator for the County of Camden, sent Plaintiff's counsel three subsequent letters reminding Plaintiff's counsel that the tort claim questionnaire had not been returned and that if the information sought in the questionnaire was not provided, Plaintiff's tort claims could be subject to dismissal. (Defendants' Brief, Exs. 7,8 and 9).

 Without responding to the County of Camden's repeated requests for the information requested in the tort claims questionnaire, Plaintiff filed his complaint in this Court on August 15, 1996, against the County of Camden and the Camden County Prosecutor's Office, as well as against the State of New Jersey, *fn3" the Borough of Lawnside, and numerous John Does. In his complaint, Plaintiff asserts that the conduct of the various Defendants amounted to violations of his civil rights pursuant to 42 U.S.C. § 1983 *fn4" (First, Second and Third Counts), as well as tortious conduct under New Jersey state law (Fourth, Fifth, Sixth and Seventh Counts).

 II. Summary Judgment Standard

 A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he or she] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Hersh v. Allen Products. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the Court must view all inferences, doubts and issues of credibility in favor of the non-moving party. See Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.), cert. denied, 133 L. Ed. 2d 26, 116 S. Ct. 64 (1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987) (citation omitted); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Moreover, Federal Rule of Civil Procedure 56(e) provides:

 
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 Fed. R. Civ. P. 56 (e).

 Under this rule, a defendant must be awarded summary judgment on all properly supported issues identified in its motion, except for those for which a plaintiff has provided evidence to show that a question of material fact remains. Put another way, once the moving party has properly supported its motion, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A summary judgment movant may meet its burden by showing that the opposing party is unable to meet its burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. ...


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