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Nurse v. Atlantic County Government

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 13, 2010

RONALD A. NURSE, PLAINTIFF-APPELLANT,
v.
THE ATLANTIC COUNTY GOVERNMENT, THE CITY OF ATLANTIC CITY GOVERNMENT, THE ATLANTIC CITY POLICE DEPARTMENT, POLICE OFFICER M. MURRAY, POLICE OFFICER P. TALIASERRO, POLICE OFFICER W. SANTIAGO, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3539-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2009

Before Judges Yannotti and Chambers.

Plaintiff Ronald Nurse appeals from the trial court order of December 3, 2008, dismissing his complaint in Docket No. L-3539-08. The trial court had dismissed the complaint because it failed to state a claim pursuant to Rule 4:6-2(e) and because the court had previously dismissed a similar complaint under Docket No. L-3678-07 as time barred under N.J.S.A. 59:8-9. We reverse.

Plaintiff, appearing pro se, filed a complaint, Docket No. L-3678-07, against defendants and his former landlord Ren Nurse on October 22, 2007.*fn1 The Atlantic City governmental entities moved to dismiss the complaint due to plaintiff's failure to await the requisite six-month period after the public entity received notice of claim before filing suit, as required by the Tort Claims Act, N.J.S.A. 59:8-8. The trial court granted the motion and entered an order dated January 18, 2008, dismissing without prejudice the claim against the "Atlantic County Government."

Plaintiff thereafter made a motion under Docket No. L-3678-07 "requesting time to file his complaint against the Defendants" explaining that his earlier complaint had been dismissed as filed prematurely. He indicated that he was filing a new complaint based on information he received from the "Pro Se Office." The court entered an order dated November 7, 2008, under Docket No. L-3678-07, stating that the claim was time-barred by N.J.S.A. 59:8-9. However, the newly filed complaint was treated separately from the motion; it was stamped filed on October 17, 2008, and was given Docket No. L-3539-08.

In response to the filings under Docket No. L-3539-08, the court entered an order dated December 3, 2008, stating that the complaint was time-barred under N.J.S.A. 59:8-9, and citing its previously issued order of November 7, 2008, entered under Docket No. L-3678-07. The order also stated that the pleadings failed to state a claim upon which relief could be granted under Rule 4:6-2(e). Plaintiff appeals this order.

The record before this court does not support the dismissal of the complaint for failure to comply with N.J.S.A. 59:8-9 for a variety of reasons. N.J.S.A. 59:8-9 provides that if a litigant fails to file a notice of claim against a public entity within the ninety days provided in N.J.S.A. 59:8-8, then the court has limited discretion to allow the litigant to file a late notice of claim. In his motion, plaintiff was not seeking permission to file a late notice of claim, so that issue was not before the trial court. In addition, the record does not establish whether or not plaintiff has filed a tort claims notice with the public entity as required by N.J.S.A. 59:8-7, and if so, whether it was timely or not. As a result, there is no basis to conclude that he has failed to comply with the notice requirements of the Tort Claims Act. Further, the January 18, 2008 court order dismissing the complaint without prejudice for failure to comply with N.J.S.A. 59:8-8, was due to plaintiff's premature filing of the complaint, a problem no longer present when he filed the within action. Finally, even if plaintiff had failed to comply with the notice provisions of the Tort Claims Act, that defect would not defeat his constitutional claims. See Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546, 558 (2000) (stating that "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").

Also the trial court has provided us with no analysis as to why it determined that the complaint fails to state a cause of action. Before the court may dismiss a complaint for failure to state a cause of action under Rule 4:6-2(e), "the complaint must be searched in depth and with liberality to determine if a cause of action can be gleaned even from an obscure statement . . . . Every reasonable inference is therefore accorded the plaintiff and the motion granted only in rare instances and ordinarily without prejudice." Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2.

The pro se complaint in this case is long and rambling, with incoherent, argumentative, and irrelevant passages. However, in light of the standard noted above, a careful and liberal reading reveals that plaintiff is suing because he contends the police officers assisted his landlord in unlawfully evicting him from his residence, which he described as an "illegal home invasion." Among the documents attached to the complaint is a landlord tenant complaint against plaintiff with the stamped date of September 13, 2007, Docket No. LT-3976-07, and a return date of September 28, 2007. Also included among the documents is a Mediation Agreement on the letterhead of an entity called "Community Mediation Services" signed by plaintiff and his landlord, Ren Nurse, dated September 19, 2007, which is after the landlord-tenant action was commenced but before its return date. In the Mediation Agreement, plaintiff agreed to "no longer reside in Ken [sic] Nurse's House" after September 21, 2007; the landlord agreed not to enter the house until after that date; both parties agreed that no rent monies were owed; and the landlord agreed to "drop the eviction notice." In his complaint, plaintiff contends that on September 22, 2007, his landlord and the defendant officers evicted him pursuant to a "phony eviction notice." A copy of the court records indicate that the landlord tenant action was dismissed without prejudice on the return date of September 28, 2007, after plaintiff contends he was removed from the premises. Plaintiff asserts that his constitutional rights were violated among other claims.

The record contains no explanation by the trial court of why the complaint fails to state any cause of action. We note that ordinarily under Rule 4:6-2(e), the question of whether a complaint sets forth a claim upon which relief can be granted will be decided on motion by the defendant. In that way, all sides can be heard on the question, and the court's decision is available for review.

Due to the offensive, crude slang and coarse language used in the complaint and its abusive verbal assaults, the trial court may also consider application of Rule 4:6-4.

Reversed and remanded.


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