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Albert J. Fields, Jr v. Essex County Probation Department

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 28, 2011

ALBERT J. FIELDS, JR., PLAINTIFF-APPELLANT,
v.
ESSEX COUNTY PROBATION DEPARTMENT, KEVIN MATTHEWS AND ROBERT SCHULTZ, DEFENDANTS-RESPONDENTS/ THIRD-PARTY PLAINTIFFS,
v.
COUNTY OF SALEM, THIRD-PARTY DEFENDANT/ FOURTH-PARTY PLAINTIFF,
v.
BOROUGH OF PENNS GROVE, ESSEX COUNTY, FOURTH-PARTY DEFENDANT.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-0339-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2011 - Decided

Before Judges Kestin and Newman.

Plaintiff, Albert J. Fields, Jr., appeals from an order granting summary judgment in favor of defendants: Superior Court of New Jersey, Essex Vicinage, Probation Division; Robert Schultz, Court Services Supervisor; and Kevin Matthews, Probation Officer. We affirm.

The essential facts surrounding the summary judgment involved child support orders of non-payment which resulted in arrearages as of July 14, 2006 in the amount of $44,570. At a hearing on March 20, 2001, the court ordered plaintiff to comply with a "$200 monthly child support payment." Included in that order was a provision "requiring plaintiff's arrest upon missing two consecutive payments, without further notice." Plaintiff was also made aware at that time that his "driver's license would be suspended, and a bench warrant" would be issued upon his failure to comply with the terms of the order. As a consequence of the March 20, 2001 order, plaintiff's failure to remit more than two consecutive support payments resulted in defendant Probation Officer Matthews sending a "'Notice of Non- Compliance with Income Execution' to Dial-A-Satellite plaintiff's last known" place of employment. Apparently, plaintiff no longer worked for that employer as of December 7, 2004. A request for a bench warrant was submitted on May 12, 2005. The court issued a bench warrant for plaintiff's arrest on May 23, 2005.

The Probation Department received $200 payments from plaintiff on May 23, 2005, June 30, 2005, and July 26, 2005. No payments were received after the July payment and through November 2005. On November 3, 2005, plaintiff appeared before Judge Cifelli to address the outstanding bench warrant. Released on his own recognizance, plaintiff "was ordered to pay $500 by December 4, 2005, or another bench warrant" would be issued. The order further provided that the "failure to comply would result in automatic suspension of his driver's license, without further notice."

Plaintiff did not pay the $500. On December 6, 2005, he filed a Chapter 7 Bankruptcy Petition, which did not discharge his child support obligations.

Plaintiff filed a motion in January 2006 to modify the amount of his child support payment. The motion was dismissed by the court on February 10, 2006.

Plaintiff, not having complied with Judge Cifelli's order to pay $500 by December 4, 2005, and the failure to make any support payments between January and April of 2006, Judge Michelle Hollar-Gregory issued a bench warrant for plaintiff's arrest on April 26, 2006. On May 13, 2006, plaintiff filed a motion to vacate that bench warrant and to reinstate his license. On July 14, 2006, Judge Camp heard the motion telephonically. The judge issued an order on that date, vacating the bench warrant and restored plaintiff's driver license. He also suspended the $200 monthly child support payment until October 1, 2006. The order indicated that plaintiff had been making timely payments and the bench warrant was issued in error. No transcript of this proceeding, even if a verbatim record exists, has been provided on appeal. The Essex Vicinage Probation Department records show that no child support payments were made between January 2006 and November 2006.

On August 2, 2006, the trial court's order vacating the bench warrant was entered into the Automated Child Support Enforcement System (ACSES). The ACSES "tracks all probationers and probation cases" throughout the State and "was used to verify and update information regarding warrants by [] Sheriff's Departments."

On November 22, 2006, plaintiff was stopped by the Penns Grove police department in Salem County for a tailgating violation. While investigating that traffic stop, the officers discovered that plaintiff was subject to an "active warrant from the Essex County Sheriff's Department for child support." Plaintiff also was arrested for possession of marijuana and an open container of alcohol. Plaintiff was incarcerated in the Salem County jail for four days until his transfer was effectuated to the Essex County jail. After one day, the Essex County authorities determined that the warrant had been vacated and plaintiff was released without a court appearance. ACSES reflected the vacation of the warrant, but that was not reflected in the National Crime Information Center data base (NCIC), an electronic system utilized by law enforcement. "For security reasons, NCIC information can only be entered on that system by federal, state, local, and international criminal justice agencies."

Plaintiff filed a complaint on November 2, 2007, alleging that he suffered a false arrest and imprisonment resulting from inadequate notice of the bench warrant proceedings pursuant to N.J.S.A. 2A:17-56.41 and erroneous certification of his 2006 non-payment child support history. Plaintiff filed an amended complaint on October 27, 2008, substituting Probation Officer Kevin Matthews for a fictitious defendant and, likewise, Supervisor Robert Schultz, for a fictitious defendant. The amended complaint contained the same allegations relating to his detention in 2006 on the warrant that had been vacated, but also added claims relating to issuance of a bench warrant on May 23, 2005 based on allegations of insufficient statutory notice. He also alleged that at that time he was not in default of his child support obligations by reason of a payment received through a federal tax intercept; therefore, a warrant could only be issued if he missed another two consecutive payments.

Essex County Probation Department filed a third-party complaint against Salem County seeking contribution and indemnification. In turn, the County of Salem filed a fourth-party complaint against the County of Essex and the Borough of Penns Grove also seeking contribution and indemnification. Plaintiff did not amend his pleadings to add these other public entities as defendants. The claims of the fourth-party defendant, Borough of Penns Grove, were dismissed, as well as those against the County of Salem. Neither of these parties are involved in this appeal.

In granting summary judgment, Judge David W. Morgan, in a comprehensive, written opinion of December 10, 2009, found that the Essex Vicinage Probation Division, was not "a person" subject to liability under 42 U.S.C.A. § 1983 or the New Jersey Civil Rights Act. He further held that plaintiff's 2005 allegations were untimely, filed beyond a two-year limitation period. Also, regarding the 2005 allegations, with respect to state tort claims, Judge Morgan determined that notice of claim provisions under the Tort Claims Act, N.J.S.A. 59:8-1, et. seq. were not followed. He further found that the two bench warrants were separate events, analogizing them to two separate automobile accidents.

The trial judge also ruled that plaintiff failed to establish a duty by defendants to post a notice of a vacated bench warrant on a system outside of ACSES. Because the bench warrant had been vacated by court order, the allegations of the complaint relating to the 2006 warrant failed because of lack of proximate cause. The trial judge clearly noted that the superseding event, the vacation of the warrant and the removal of such from ACSES, broke the chain of causation. The court also dismissed any allegation of vicarious liability against defendant Supervisor Schultz because such a claim was not recognized under 42 U.S.C.A. § 1983.

With regard to the various immunities asserted by defendants, the trial judge concluded that the probation officer, his supervisor, and the Probation Department were entitled to absolute quasi-judicial immunity, qualified immunity, and immunities under the Tort Claim Act, N.J.S.A. 59:2-3(b) and N.J.S.A. 59:3-10.

On appeal, plaintiff raises the following issues for our consideration:

POINT I

IT WAS ERROR FOR THE COURT TO DETERMINE THE DEFENDANTS WERE ENTITLED TO IMMUNITY UNDER 42 U.S.C.A. § 1983.

POINT II

IT WAS ERROR FOR THE COURT TO DETERMINE THAT THE NEW JERSEY CIVIL RIGHTS ACT DID NOT APPLY TO ACTIONS AGAINST THE STATE OR ITS AGENCIES.

POINT III

IT WAS IMPROPER FOR THE COURT TO DISREGARD THE ORDER OF JUDGE CAMP AND DETERMINE THAT THE DEFENDANTS HAD PROBABLE CAUSE TO REQUEST THE WARRANT ON MAY 11, 2005.

POINT IV

IT WAS IMPROPER FOR THE COURT TO DISREGARD THE ORDER OF JUDGE FARRELL THAT DETERMINED ACSES WAS NOT THE SYSTEM TO NOTIFY THE SHERIFF OF THE COUNTY OR ANY CONSTABLE OR POLICE OFFICER THAT THE APRIL 12, 2006 WARRANT HAD BEEN VACATED.

POINT V

IT WAS ERROR FOR THE COURT TO DETERMINE THE 5-11-05 WARRANT AND THE 11-03-05 UNLAWFUL IMPRISONMENT WERE SEPARATE AND DISTINCT INCIDENTS FROM THE 4-12-06 WARRANT REQUEST AND JUDGE CAMP'S ORDER OF 7-14-06.

We have considered plaintiff's arguments presented and reject them substantially for the reasons expressed by Judge Morgan in his opinion of December 10, 2009. We add only the following brief comments.

In Point III, plaintiff argues that the order of Judge Camp was res judicata and that defendants lacked probable cause to request the warrant on May 11, 2006. Judge Camp's ruling had no issue preclusion or res judicata effect on these proceedings. To invoke the doctrine of issue preclusion, the parties seeking such relief must establish: (1) that the issue previously litigated "was identical to the issue" in the present case; (2) that the issue was fully and thoroughly litigated in the prior proceeding; (3) that the prior court issued a "final judgment on the merits"; (4) that the "determination of the issue was essential to the prior judgment"; and (5) that the party against whom the doctrine is sought to be applied was a party, or was in privity with a party to the prior proceeding. In re Estate of Dawson, 136 N.J. 1, 20-21 (1994) (citations omitted) (cited in First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007)).

The trial judge properly held that the July 14, 2006 hearing had no res judicata effect because "the issues before [the] court are different, [that is], whether probation had a reasonable basis to deem a warrant was indicated" regarding two missed payments ordered. Plaintiff did not establish the first prerequisite under the issue preclusion doctrine.

Moreover, defendants were not parties to the July 14, 2006 hearing nor represented by counsel. Indeed, as an arm of the court, they would be in a neutral position in a child support proceeding. Furthermore, even if defendants did not agree with the court's July 14, 2006 decision, they had no right to seek review which is fundamental to the doctrine of issue preclusion.

We are also at a loss to understand the basis for the finding that plaintiff was timely in his payments when the records of the Essex County Probation Department show that to be incorrect. Plaintiff even acknowledged as much during his deposition testimony on July 10, 2009. We also lack any record of the telephonic proceeding before the court on July 14, 2006. In any event, there is no basis that the determination made in vacating the bench warrant serves to preclude any issue presented to the trial judge here on this summary judgment motion. Summary judgment was properly granted.

Affirmed.

20110228

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