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Barnes v. Sherrer

June 24, 2008

TYRONE BARNES, PLAINTIFF-APPELLANT,
v.
LYDELL B. SHERRER, ADMINISTRATOR AT NORTHERN STATE PRISON, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division-Special Civil Part, Essex County, SC-146-07.

The opinion of the court was delivered by: Payne, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 9, 2008

Before Judges Payne, Sapp-Peterson and Messano.

Plaintiff Tyrone Barnes, presently an inmate at New Jersey State Prison, claims that, while incarcerated at Northern State Prison, some of his property was stolen by a corrections officer after Barnes was removed from his cell as the result of a disciplinary charge. After unsuccessfully seeking an administrative remedy for the lost property, he was advised by a Department of Corrections (DOC) ombudsman to file an action in the Special Civil Part against the officer, which Barnes did. However, the action was dismissed, we presume because Barnes did not appear in court. Upon inquiry to the county's assignment judge, the judge took the position that N.J.A.C. 10A:3-9.13*fn2 requires Barnes to pay the cost of his transportation to court in advance of his appearance, and that he had failed to do so. On appeal, Barnes claims that his cause of action is related to his confinement, and thus that the DOC must transport him to court at its cost. Barnes also claims that summary relief is warranted as the result of our unpublished, per curiam opinion in Aruanno v. Northern State Prison, No. A-4906-04T2 (App. Div. October 25, 2006).

Because it is our only resource, we take the facts of this matter from the brief submitted by Barnes and from the documents that he has appended to the brief. Barnes alleges that on May 15, 2005, a disciplinary charge was entered against him. At that time, he was placed in detention, and according to Barnes, prison officer Mungro ordered housing corrections officer P. Evans to pack and inventory all of Barnes's personal property. Barnes further alleges that on May 16 or 17, 2005, Lt. Pierrer Emmanuel "decided to have Barnes's property transferred to his office." Barnes states that Emmanuel was "never a part of any investigation leading up to the May 15, 2005 infraction." Barnes further states that he filed "[a]n administrative remedy" against Emmanuel on June 6, 2005 for "his abuse of authority."

Barnes claims that on June 10, 2005, portions of his personal property were returned to him, but that a Magnavox color T.V., a Cambridge radio, a Walkman stereo, beard trimmers, and his entire file of legal diskettes were missing. He states that the property received by him conformed to an inventory sheet that was then provided to him, signed by an officer McEachio*fn3 as inventory officer, which omitted any reference to the missing items. Barnes alleges that he "later learned that McEachio never existed as an employee at [Northern State Prison]." He further alleges that the original inventory form, which officer Evans confirmed that he filled out, cannot be found. Barnes asserts that Emmanuel, who allegedly transferred Barnes's property to his own office, is "notorious [for] stealing scores of prisoners' property and selling it." He also stated in his claim for lost property that "Lt. Emmanuel was playing radio in office for approx. 2 weeks. All officers that work 1, 2, 3, 4 wing will confirm if shown photo."

As evidence that Barnes previously possessed the articles that he claims were stolen from him, Barnes has produced an inmate inventory sheet, dated March 31, 2005, that indicates that a Cambridge radio was taken from him, the clock and the alarm were disabled by an Officer Harmon, and the radio was returned to him on April 1, 2005 - forty-five days before the incident leading to Barnes's detention. Barnes also has produced product information regarding the radio that states a price of $349.99. With respect to the beard trimmer, Barnes has produced a "Test of Appliance" form, dated either January or July 2, 2002, indicating that Barnes's "ANDIS, Beard Trimmer" worked to Barnes's satisfaction and that it was both tested and engraved. An October 11, 1997 receipt for a Sony Walkman costing $63.00 has also been included. Barnes has produced no evidence of ownership of the allegedly missing television, but claims a value of $131.89 for it.

On June 15, 2005, Barnes was transferred to Northern State's infirmary, and on June 21, 2005, he was transferred to New Jersey State Prison. Following his transfer and upon receipt on August 15, 2005 of his property, Barnes filed an inmate property claim, dated August 16, 2005 and received by "C. Tulband" on August 18, 2005. An additional copy of the claim form and exhibits was forwarded to Northern State Prison by a social worker named Nievez on August 31, 2005 through inter-institutional mail.*fn4

Barnes appears to have received no response from Northern State Prison. A letter to the Attorney General likewise received no response. On January 6, 2006, Barnes was advised by assistant ombudsman Lee to file a "small claim in the small claim court." A detailed complaint, dated September 25, 2006, was subsequently filed, along with a request for a court order requiring DOC transportation to court. A response to the request was not received, although court staff did contact Barnes to request that he "file an order to waive filing fees."

Barnes was notified that a non-jury trial in his matter was scheduled for February 9, 2007. By letter (allegedly, his third) dated April 26, 2007 and addressed to the assignment judge, Barnes inquired about the status of his claim. In a response dated May 7, 2007, the judge informed Barnes that his case was dismissed on January 22, 2007, prior to the scheduled trial date, and stated further:

Any person who is incarcerated who files a small claims action must follow the court rules as stated under N.J.A.C. 10A:3-9.13, which states the costs associated with transporting the inmate to court for a civil case is the responsibility of the inmate/and inmate's attorney or representative. The Civil court does not make these accommodations on matters plaintiff files for their own personal recourse. The facility social worker can provide you with information with ...


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