On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, DC-2406-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
Plaintiff, Charles Merritt, an inmate incarcerated at New Jersey State Prison, appeals the dismissal of his Special Civil Part Complaint. On May 18, 2005, a radio and word processor were seized from plaintiff. On May 19, 2005, disciplinary charges were leveled against Merritt based upon a finding of contraband hidden inside the word processor.*fn1 The stated reasons on the Inmate Receipt Form for the seizures were that the items were not authorized for retention or receipt, had been altered from their original form, and had not been acquired through proper channels. Plaintiff was advised that he had three working days from the date he received notice of the seizure to appeal to the Superintendent. Plaintiff was found guilty of the disciplinary charge on May 25, 2005.
In August 2005, plaintiff sought return of the items taken. On November 15, 2005, Administrator Ronald Cathel filed a Notice of Decision on Appeal, Contraband Seizure, confirming that the items were seized for the reasons set forth on the Inmate Receipt Form and indicating that plaintiff had two days to have the property mailed, picked up, donated, or destroyed. The notice also indicated that if plaintiff refused to give a disposition, the property would be removed from storage and destroyed.
On March 19, 2007, plaintiff filed his Special Civil Complaint, naming as defendants four prison employees and claiming that they violated prison administrative rules and regulations in dealing with his requests for return of the property and violated his Fourteenth Amendment rights by punishing him beyond what is prescribed by the Administrative Code. He also claimed that he "did not want to file a . . . civil litigation . . . but . . . exercised all his remedies within the institution, before filing [his] action."
On April 11, 2007, defendants moved to dismiss the complaint, asserting that jurisdiction for appeals from administrative decisions was with the Appellate Division and plaintiff had failed to exhaust his administrative remedies. R. 2:2-3(a)(2). Defendants also argued that plaintiff's property damage cause of action was barred because he failed to file a Notice of Claim as required by N.J.S.A. 59:8-8 of the New Jersey Tort Claims Act. On April 27, 2007, the Special Civil Part judge granted defendants' motion "for all of the reasons set forth in the brief provided by the Office of the Attorney General." Plaintiff responded with a motion to extend time to file notice under the Tort Claims Act. Denying plaintiff's motion, the judge noted in the Order that "[t]he case was dismissed as it [was] not properly filed in [that] court." On the same date, the judge also denied plaintiff's motion for reconsideration. In the order denying reconsideration, the judge wrote: "This is an administrative matter, and if final, requires any appeal to court to be made directly to the Appellate Division."
On appeal, plaintiff raises the following points:
Did the lower court clerk commit a constitutional error when denying appellant the right to be notified of an opportunity to be heard. Violating the 6th, 14th U.S. Const; Art. 1 Par. 10, Art. 1, Par. 1 of New Jersey Const.
Trial court committed a constitutional error by not reviewing appellant's brief and made a deficient decision to dismiss.
The exclusive method for review of an action or inaction of the Department of Corrections is by direct appeal to the Appellate Division. R. 2:2-3(a)(2). In his appellate brief, plaintiff concedes that if we determine that his complaint was improperly filed in the Special Civil Part because it should have been filed with us as an appeal from a final decision of an administrative ...