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Michael Brown v. Passaic County

July 2, 2012

MICHAEL BROWN, PLAINTIFF-APPELLANT,
v.
PASSAIC COUNTY, DEFENDANT-RESPONDENT, AND SERGEANT MEEHAN, OFFICER DALTON, OFFICER TORRIBO, AND OFFICER TORRES, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3128-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012

Before Judges Baxter and Carchman.

PER CURIAM

Plaintiff Michael R. Brown, an inmate at New State Prison in Trenton, appeals from an order denying his motion, which sought leave to file a notice of tort claim out of time.

Plaintiff asserts that extraordinary circumstances existed to support his claim for relief from the time limitations imposed by the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3, and he further asserts that he was misled by counsel as to the filing requirements. The trial judge denied relief. We conclude that the judge did not abuse his discretion, and we affirm.

These are the relevant facts presented in support of the motion for leave to file a late notice. Plaintiff is an inmate presently incarcerated for a term of life imprisonment for murder. As a result of an application for relief from his conviction and sentence, plaintiff was transferred to the Passaic County Jail, where he was held pending his appearance before the court in the Passaic County Courthouse. Plaintiff claims that on July 9, 2009, while awaiting a court appearance, he was involved in an altercation with a Passaic County corrections officer, from which he allegedly sustained injuries and suffered damages. Plaintiff was transported to St. Joseph's Hospital, where he was treated for head injuries, abrasions and lacerations before he was released. In January 2010, six months after the altercation, plaintiff, through his attorney, filed a notice of tort claim.

In February 2010, counsel was advised by the County's insurance carrier that the notice was filed out of time. N.J.S.A. 59:8-8. The attorney responded in the same month, challenging the decision not as to its merits, but rather, by claiming that the decision as to timeliness was properly a court decision rather than one to be made by a carrier. After the February response, plaintiff took no further action until June 2010, when he filed a notice of motion for leave to proceed in forma pauperis. Counsel filed a notice of motion for leave to file a late notice of tort claim. Included in the filing was a certification from the attorney, as well as a disclaimer that she did not represent plaintiff. Also included among the papers was plaintiff's certification, wherein he stated:

8. As a result of the administrative charges brought against me at the Passaic County Jail, I was subject to severe discipline and locked in solitary confinement at New Jersey State Prison, where I remain, under extraordinary circumstances which prevented me from filing a timely Notice of Claim as described below. []

12. Because [] the charges lodged against me in Passaic County [] were communicated to the prison, I was immediately placed in close custody detention (short[-]term solitary confinement) at the prison[,] where I remained for 32 days. []

The record indicates that at all times relevant to the motion, plaintiff was in "solitary confinement."

Although not alluded to by the trial judge, additional facts relevant to plaintiff and his condition emerge from the filing in support of his motion. He claims that during the time period subsequent to the alleged assault, he had limited access to legal and paralegal assistance; yet during this same period, he prepared for various other legal proceedings, including the defense of disciplinary charges against him, as well as the appeal of an adverse ruling in reference to those charges. In addition, he claims to have been hindered in investigating the facts underlying the present cause of action; however, plaintiff related that he used the services of his family's lawyer, who, while claiming not to represent plaintiff in this action, was actively engaged in securing information and processing various documents related to the underlying cause of action. Her efforts appear to be expansive especially in the period immediately subsequent to the July incident.

Most important, plaintiff requested that the attorney "prepare and submit the Passaic County [n]notice of [c]laim form with medical records." In January 2010, the attorney fulfilled plaintiff's request by signing the notice of claim on behalf of plaintiff prior to its submission. No explanation was forthcoming as to the six-month delay between the July incident and the January filing.

In denying plaintiff's motion, the trial judge noted that while plaintiff alleged that as an incarcerated person, he had limited access to resources that would have assisted him in filing the claim, his allegations were too generalized to rise to ...


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