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Bennett v. Dowling

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 18, 2008

FRANCIS BENNETT, PLAINTIFF-APPELLANT,
v.
MICHAEL DOWLING AND JOHN KAPSAMALIS, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-5424-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 8, 2008

Before Judges Coburn and Chambers.

On December 5, 2005, plaintiff filed a pro se complaint in the Law Division against Michael Dowling, a detective in the Monmouth County Prosecutor's Office, and John Kapsamalis, an officer employed by the New Jersey Department of Corrections.

Plaintiff alleged that on March 25, 1993 Dowling removed plaintiff from state prison and brought him to the Prosecutor's office, where he gave a statement that ultimately led to his 1998 conviction for conspiracy to commit murder. He was sentenced to 30 years imprisonment. Plaintiff alleged that Kapsamalis aided Dowling, and that the actions of both defendants violated a judicial writ commanding that defendant be brought to court on March 25, 1993. Finally, plaintiff alleged that defendant's conduct violated the New Jersey Habeas Corpus Act, N.J.S.A. 2A:67-1 to -36. Defendant has been in prison continually since March 25, 1993, first on other convictions, and after 1998 on the conspiracy to commit murder conviction.

Defendants moved to dismiss the action, arguing that it was barred by the applicable statute of limitations. Judge Cavanagh granted the motion, and plaintiff appeals.

After carefully reviewing the record and briefs, we are satisfied that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Cavanagh in his thorough and well-reasoned oral opinion of November 27, 2006. We add the following comment.

The applicable statute of limitations is contained in N.J.S.A. 2A:67-11, which provides that the action must be commenced within 2 years after the offense is committed; but if the person aggrieved shall be in prison, by reason of such wrongful act, then within 2 years after the decease of such party while in prison or his deliverance out of prison whichever shall happen first.

The extended period for filing of the action only applies when a plaintiff has been held in prison "by reason of" the "wrongful act." In this case, plaintiff was in prison when the supposedly wrongful act occurred. Moreover, the wrongful act is not what kept him in prison. Rather, he remained in prison because of his valid convictions. Quite obviously then, the provision for additional time to file the action is inapplicable.

Affirmed.

20080118

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