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Green v. County of Gloucester

August 4, 2008

BRIAN GREEN, PLAINTIFF,
v.
COUNTY OF GLOUCESTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

MEMORANDUM OPINION

1. This matter comes before the Court on a motion for partial summary judgment, pursuant to Fed. R. Civ. P. 56(c), by Defendants County of Gloucester, Gloucester County Board of Chosen Freeholders, Gloucester County Department of Correctional Services, Gloucester County Sheriff's Department, John Tevoli, W. Stanley Nunn, Frank J. DeMarco and Robert Balicki ("the Gloucester County Defendants"). The Gloucester County Defendants argue that Plaintiff's claims arising under New Jersey tort law should be dismissed because Plaintiff failed to file a timely notice of tort claim, as required by the New Jersey Tort Claims Act ("TCA" or "the Act"). Plaintiff opposes, arguing that his failure should be excused because in this case the failure does not frustrate any policies underlying the notice requirement of the TCA.

2. As explained below, Plaintiff's admitted failure to file a timely notice of tort claim is not excusable in this case; therefore the Court shall grant the motion for partial summary judgment and bar all of Plaintiff's tort claims against the County Defendants.

3. Plaintiff Brian Green was incarcerated at the Gloucester County Correctional Facility from September 23-30, 2004.*fn1 During that incarceration, he developed an infection that began causing symptoms after his release. Plaintiff claims that he acquired an infection caused by staphylococcus aureus bacteria and that the Defendants are liable for his injuries. Several other inmates have filed similar claims against the Gloucester County Defendants that are pending in this Court and have been consolidated for purposes of discovery. See Collins v. County of Gloucester, No. 06-2589 (D.N.J. Feb. 5, 2008) (sixth order of consolidation).

4. Defendants County of Gloucester, Gloucester County Board of Chosen Freeholders, Gloucester County Sheriff's Department and Gloucester County are governmental entities. Defendant John Tevoli was the warden at Gloucester County Correctional Facility from May 27, 2003 through January 3, 2005. Defendant W. Stanley Nunn was the Director of the Gloucester County Department of Correctional Services from May 1, 2003 through January 3, 2005.

Defendant Frank J. DeMarco is a Freeholder on the Gloucester County Board of Chosen Freeholders. Defendant Robert Balicki is the current Director of the Gloucester County Department of Correctional Services. Those individuals were all alleged to be working for a governmental entity at all times relevant to Plaintiff's complaint.

5. Plaintiff filed this action in the Superior Court of New Jersey for Gloucester County on November 27, 2006. Defendants removed the case to this Court on June 26, 2007. Counts One and Five of the Complaint assert tort claims against the Gloucester County Defendants.

6. Neither Plaintiff nor his representative filed a notice of tort claim prior to instituting this action. Instead, the notice was filed and served on or about February 13, 2007. Neither Plaintiff nor his representative filed a motion for leave to extend the time to file a notice of tort claim prior to September 30, 2005, or at any time.

7. Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255).

8. The New Jersey Tort Claims Act (the "Tort Claims Act") states that "[n]o action shall be brought against a public entity or public employee under [the Tort Claims Act] unless the claim upon which it is based shall have been presented in accordance with the procedures set forth in this Chapter." N.J. Stat. Ann. § 59:8-3. Specifically, under the Act, a claimant must sign and file a notice of tort claim (a "Notice of Claim") with the public entity within 90 days from accrual of the cause of action. Id. § 59:8-8.*fn2 After the Notice of Claim is filed, a plaintiff must wait six months before filing suit against the public entity or employee in an appropriate court. Id.

9. N.J. Stat. Ann. § 59:8-9 establishes the only exception to the requirement that a claimant file a Notice of Claim within 90 days from the date of accrual.*fn3 Under Section 59:8-9, upon a motion from the claimant supported by affidavits, the district court has discretion to allow late filing of a Notice of Claim if made within one year of the claim accrual date provided that (1) the claimant seeking to file a late claim shows reasons constituting "extraordinary circumstances" for the claimant's failure to meet the 90-day filing requirement and (2) that the defendant(s) are not "substantially prejudiced thereby." N.J. Stat. Ann. § 59:8-9. The existence of "extraordinary circumstances" is determined by the courts on a case-by-case basis. Rolax v. Whitman, 175 F. Supp. 2d 720, 730-31 (2001), aff'd, 53 F. App'x. 635 (2002); S.P. v. Collier High Sch., 319 N.J. Super. 452, 465 (App. Div. 1999).

10. Plaintiff's tort claims are against public entities and public employees and, consequently, Plaintiff was required to file a Notice of Claim with Gloucester County within 90 days of the accrual of her claim. See Forcella v. City of Ocean City, 70 F. Supp. 2d 512 (D.N.J. 1999); Velez v. City of Jersey City, 180 N.J. 284, 296 (2004) (notice must be given only to the governmental entity but failure to provide notice also bars claims against employees).

N.J.S.A. 59:8-8 was amended in 1994 to require a complaining party to give a public entity notice of "[a] claim relating to a cause of action for death or for injury or damage to person or to property" against a public entity or public employee. Otherwise, "[t]he claimant shall be forever ...


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