On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6590-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Sabatino and Lyons.
Plaintiff, Lorenzo Oliver, appeals an order entered November 7, 2008, granting summary judgment to defendants, Yvonne Lee, Lt. M. Kady, and the Department of Corrections (DOC). The order dismissed his complaint with prejudice "pursuant to R. 4:6-2(e)." Plaintiff also appeals another order dated November 7, 2008, denying his motion to extend time for discovery. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
Plaintiff is an inmate confined at Northern State Prison in Newark, New Jersey. On October 14, 2007, plaintiff was an inmate at East Jersey State Prison and was working as a dishwasher. Co-defendant Lee, a training instructor, was standing behind him, with her back towards him. Plaintiff allegedly touched Lee's buttocks at that time. Plaintiff was consequently charged with disciplinary violations for sexual assault and unauthorized physical contact. He was thereafter transferred to Northern State Prison and held in administrative segregation for pre-hearing detention. On November 5, 2007, the charges against plaintiff were dismissed.
On November 8, 2007, plaintiff filed an appeal seeking to be transferred back to East Jersey State Prison. That appeal was dismissed by way of summary disposition. See Oliver v. Power, No. A-1695-07 (App. Div.). On December 31, 2007, plaintiff wrote a letter to the Attorney General, "requesting that your office file a criminal complaint formally against Ms. E. Lee." He requested that the Attorney General charge Ms. Lee with various criminal offenses arising from what he claimed to be false allegations. Evidently, no response was received to that letter.
On August 12, 2008, plaintiff filed a suit against defendants Lee, Kady, and DOC for damages allegedly arising from the dismissed disciplinary charges referred to above. Plaintiff, however, did not file a notice of claim prior to instituting the suit as required by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. N.J.S.A. 59:8-8(a) requires that notice of such a claim need be filed with a public entity within ninety days of accrual of a claim except as otherwise provided in N.J.S.A. 59:8-9.
On or about October 7, 2008, the Attorney General's Office filed a motion for summary judgment with a return date of November 7, 2008. On October 19, 2008, plaintiff wrote to the trial court advising it that he had "run into difficulty in attempting to answer the defendants, (Dept. of Corrections) motion for Summary Judgment." He advised the court that he was having difficulty gaining access to the prison law library to prepare his response. On October 23, 2008, plaintiff filed a "motion for extension of time to answer the motion for summary judgment pursuant to R. 4:46-1." In that motion, the plaintiff sought an extension of time to answer the summary judgment motion. He cited to his inability to get access to the prison law library when he requested it as the reason for the extension.
On October 30, 2008, plaintiff claims he filed in the trial court a motion for leave to file a late notice of claim, together with supporting documents. In his supporting papers, he claims he was prohibited from using the law library and, therefore, was unable to conduct the appropriate research to determine what steps had to be taken to perfect his claim against the co-defendants in this matter. The Superior Court, Law Division's Automated Case Management System does not show that that motion was ever received. Further, the trial court did not address the motion in its November 7, 2008, order at which time the trial court granted summary judgment, dismissing the complaint with prejudice and denying the motion for an extension of time. The record supplied to us does not contain any transcript, memorandum, or other writings setting forth the trial court's findings of fact and conclusions of law with respect to this entire matter.
On appeal plaintiff presents the following three points for our consideration:
COURT ABUSED ITS DISCRETION IN DISMISSING INMATE OLIVER'S TORT CLAIM ON SUMMARY JUDGMENT WHEN INFORMAL NOTICE OF CLAIM WAS SUFFICIENT TO MEET REQUIREMENTS UNDER TORT CLAIMS ACT, AND DOCTRINE OF SUBSTANTIAL COMPLIANCE SHOULD HAVE BEEN INVOKED TO PREVENT DISMISSAL OF HIS CLAIM IN VIOLATION OF N.J.S.A. ...