The opinion of the court was delivered by: Orlofsky, District Judge
This case, which alleges that the former Governor of New Jersey, Christine Todd Whitman, and the New Jersey State Police unlawfully detained and searched Plaintiff in violation of his constitutional rights, stands apart from the legions of similar cases. This notoriety arises from the involvement of former Governor Whitman as a principal state actor in the events giving rise to this case. Plaintiff alleges that Governor Whitman agreed to pose for a photograph which depicted her frisking Plaintiff after it had already been determined that he possessed no weapons or contraband in an earlier search of the Plaintiff conducted by the New Jersey State Police. It is this "posed" stop and frisk of Plaintiff which is the centerpiece of this lawsuit.
On July 6, 2001, Defendants filed a Motion to Dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), claiming that Plaintiff's Complaint is time-barred by the relevant statutes of limitations and by Plaintiff's failure to comply with the mandatory notice requirements of the New Jersey Tort Claims Act, N.J.S.A. § 59:8-3. This time bar exists, Defendants assert, even if the applicable statutes of limitations are tolled for the period of Plaintiff's infancy.
I need not address the merits of Plaintiff's Complaint because he cannot overcome the procedural hurdles presented by the expiration of the applicable statutes of limitations, or his failure to file a timely Notice of Claim under the New Jersey Tort Claims Act. Although this result deprives the Plaintiff of an opportunity to litigate the merits of his claims, it has been long recognized that: "[a]lthough any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interest in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64 (1975); accord Sun Oil Co. v. Wortman, 486 U.S. 717 (1988)("The statute of limitations a State enacts represents a balance between, on the one hand, its substantive interest in vindicating substantive claims and, on the other hand, a combination of its procedural interest in freeing its courts from adjudicating stale claims and giving individuals repose from ancient breaches of law"). Even constitutional rights "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 444 (1944). For the reasons set forth below, Defendants' Motion to Dismiss shall be granted and Plaintiff's Motion for leave to file a late Notice of Claim under the New Jersey Tort Claims Act will be denied.
This Court's conclusion that Plaintiff's claims are procedurally barred, however, should not be construed as expressing any opinion as to the merits of his claims, or the conduct of Defendants. Because Defendants have moved to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted, this Court must accept as true all well-pled allegations in Plaintiff's Complaint. I note in passing that the violation of an individual's civil rights by state officials entrusted with their protection, if true, is reprehensible conduct that cannot be condoned by a society whose Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV.
On April 24, 2001, Plaintiff, Sherron Rolax ("Rolax"), filed this civil rights action against the State of New Jersey, the New Jersey State Police, former Governor of New Jersey, Christine Todd Whitman, Carl Williams, the former Superintendent of the New Jersey State Police, and several New Jersey State Police officers, alleging violations of 42 U.S.C. § 1983 (Counts One, Two, Three), the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-1 et seq. (Count Four), common law battery (Count Five), and Invasion of Privacy/Publication (Count Six).
Counts One through Five arise from Defendants' detention and search of Rolax on or about May, 1996, for possible possession of contraband or weapons. Rolax was detained after an initial "Terry" search *fn1 revealed that he was not in possession of any illegal materials; he was subsequently frisked by Defendant, Christine Todd Whitman. After this second search, Rolax was released.
Count Six alleges a violation of Rolax's privacy interests by the publication of a photograph, on or about July, 2000. Specifically, Count Six alleges:
The publication and use of the likeness of Plaintiff in the unlawful manner set forth in this complaint constitutes a violation of the legitimate privacy interests of Plaintiff under the Constitutions of the State of New Jersey and the United States of America. As a direct and proximate result of the aforesaid knowing, wilful and/or reckless violations of the Defendants, or any of them, Plaintiff Rolax has endured and will continue to endure suffering and mental anguish and was otherwise damaged. See Compl. ¶¶ 58, 59.
The photograph depicts Rolax being searched by Defendant, Christine Todd Whitman. In the Statement of Facts section of their brief filed in support of the Motion to Dismiss, Defendants contend that "Count six [sic] seems to involve the publication of a photograph by unidentified newspapers in or about July 2000. The unidentified newspapers which allegedly published the photograph have not been named as defendants in this action." Def.'s Br. at 1. On a Motion to Dismiss, however, the Court is obligated to draw all reasonable inferences in the plaintiff's favor. Although inartfully pled, it is possible to construe Count Six as alleging that the Defendants were involved in providing the photograph of Rolax to the newspapers who published it, thus implicating Defendants in the publication of the photograph. Thus, although neither side briefed the arguments in support of or in opposition to a dismissal of Count Six, the Court will construe Count Six as alleging Defendants' complicity in the publication of the photograph.
Rolax attempts to defeat the harsh effect of the running of the applicable statutes of limitations on Counts One through Five by arguing that his cause of action did not accrue until July, 2000 when his photograph was published in the newspapers along with a report of an alleged "conspiracy" among the Defendants to violate his constitutional rights. In support of this theory, Rolax relies upon New Jersey's judicially created "discovery rule." Under the "discovery rule," a cause of action does not accrue so long as Plaintiff is "reasonably unaware either that he [or she] has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity." Mancuso v. Neckles, 163 N.J. 26, 29 (2000).
Regarding his common law tort claim, Rolax also makes an application to the Court to file a late Notice of Claim pursuant to N.J.S.A. § 59:8-9 of the New Jersey Tort Claims Act, which permits a Plaintiff to file a Notice of Claim within one year of the accrual of his cause of action upon court order after notice.This Court heard oral argument on October 12, 2001, to consider the tolling of the statutes of limitation based upon Rolax's infancy at the time of the incident *fn2 , and the applicability of the "discovery rule" to the facts of this case.
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), for "failure to state a claim under which relief can be granted" is governed by the following legal standard: "In considering a motion to dismiss under Rule 12(b)(6), the Court may dismiss a complaint if it appears certain that the plaintiff cannot prove any set of facts in support of its claims which would entitle it to relief." Mruz v. Caring, Inc., 39 F. Supp.2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing Ransom v. Marazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all well-pled allegations are accepted as true and reasonable inferences are drawn in the plaintiff's favor, the Court may dismiss a complaint where, under any set of facts which could be shown to be consistent with a complaint, the plaintiff is not entitled to relief." Id. (citing Gomez v. Toledo, 446 U.S. 635, 636 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). ...