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Nurse v. Atlantic County Government

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 3, 2008

RONALD A. NURSE, PLAINTIFF-APPELLANT,
v.
ATLANTIC COUNTY GOVERNMENT, FORREST GILMORE, DIRECTOR OF THE ONE STOP JOB CENTER AND ATLANTIC COUNTY DEPT. OF FAMILY AND COMMUNITY DEVLOPMENT, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2424-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2008

Before Judges Coburn and Chambers.

Plaintiff Ronald A. Nurse contends that on June 28, 2007, he was banned from Atlantic County One Stop Job Center because he had exceeded his allotted two hours on the computer by four minutes. As a result, he has brought this lawsuit against defendants Atlantic County, Forrest Gilmore as director of One Stop Job Center, and the Atlantic County Department of Family and Community Development. On October 19, 2007, the trial court granted defendants' motion to dismiss the complaint because plaintiff did not file a timely tort claims notice in accordance with N.J.S.A. 59:8-8. Plaintiff appeals this ruling.

In resolving this appeal, we must distinguish the tort claims from the constitutional claims. Unfortunately, neither party has provided this court with a copy of the complaint, but from the description in the papers it appears that the complaint contains some tort claims, such as malicious abuse of process, and some federal constitutional claims, such as violations of plaintiff's due process rights under the Fourteenth Amendment.

The federal constitutional claims must be reinstated, since a state notice of claim statute may not impair federal constitutional rights. Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546, 558 (2000) ("[A] state's notice of claim provision in a tort claims act does not apply to an action brought in state court alleging violations of federal constitutional rights under 42 U.S.C.A. § 1983." (citing Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct. 2302, 2307, 101 L.Ed. 2d 123, 137-38 (1988))).

The tort claims, on the other hand, were properly dismissed. The New Jersey Tort Claims Act allows tort claims to be brought against public entities and public employees provided a notice of claim is filed with the appropriate public entity within ninety days of the accrual of the claim. N.J.S.A. 59:8-7 and 59:8-8. Plaintiff failed to file a notice of claim with Atlantic County within this time frame. Plaintiff contends that he did file a notice of claim, but with Atlantic City rather than Atlantic County. However, at the October 19, 2007 hearing, the trial court had an exhibit consisting of a letter dated September 19, 2007, indicating that plaintiff had filed the notice of claim with the State Department of Treasury. Either way, the record is undisputed that no timely notice of claim was filed with the County. No action may be brought against a public entity or a public employee unless the notice of claim is filed in accordance with the statute. N.J.S.A. 59:8-3 and 59:8-8. Accordingly, the trial court's dismissal of those causes of actions sounding in tort was correct.

We also note that the trial court's order of October 19, 2007, expressly states that the dismissal is without prejudice. Thus, plaintiff was not precluded from seeking permission to file a late notice of claim under N.J.S.A. 59:8-9.

For these reasons, we affirm the dismissal of all tort claims, and reverse the dismissal of all constitutional claims.

20080603

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