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Dover Davis v. New Jersey Transit and/Or New Jersey Transit Police Authorities

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 8, 2012

DOVER DAVIS, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT AND/OR NEW JERSEY TRANSIT POLICE AUTHORITIES, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6087-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically March 28, 2012

Before Judges Baxter and Nugent.

Plaintiff Dover Davis appeals from the April 1, 2011 Law Division order that granted the motion of defendants New Jersey Transit (NJT) and its police department, New Jersey Transit Police Department (the Department), to dismiss plaintiff's complaint,*fn1 with prejudice. The trial court determined that plaintiff had not complied with the notice requirements of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, with respect to the tort claim pled in the complaint. The trial court also determined that the plaintiff's complaint failed to state a civil rights cause of action against defendants. We affirm.

Plaintiff pled the following facts in his amended complaint. On May 13, 2009, plaintiff was a passenger on an NJT bus traveling through Newark when he approached the driver and asked for a transfer to another bus. The driver refused and became agitated and argumentative. During the ensuing argument between plaintiff and the bus driver, a passenger who knew the driver "interjected himself into the disagreement to assist the driver." The passenger had an object protruding from his belt. Trapped between the bus driver and the passenger, plaintiff, "afraid for his life[,] exited the bus to escape." The passenger followed, threatening to "knock the plaintiff's head off and shouting obscenities." Plaintiff telephoned the police and the Department responded. An officer and his sergeant approached the plaintiff, conducted a brief investigation, then left the location.

The officers subsequently returned and told plaintiff that they were responding to a "9-1-1 call which reported, through dispatch, that a man with a gun was at the location." One of the officers, Officer Nicosia,*fn2 issued a summons to plaintiff for disorderly conduct, N.J.S.A. 2C:33-7, stating that "We don't like cases like this." Plaintiff alleged that Nicosia discriminated against him by writing the summons and treating him differently from other citizens who had called for assistance "that day and before." Plaintiff further alleged that Nicosia's "reasoning was invalid and his belief fallacious[,] which led to the illegal writing of the summons." Plaintiff possessed no weapon and "could not have matched any description given for the suspect whom [the police] thought had a weapon." Plaintiff also alleged that Nicosia did not have probable cause to issue the summons.

According to the amended complaint, after plaintiff made six appearances in municipal court, the summons was dismissed for "lack of evidence, including witnesses, police report and a copy of the requested 9-1-1 tape." Although the matter was dismissed on November 9, 2009, a warrant was subsequently issued for plaintiff's arrest on December 14, 2009.

When plaintiff learned of the "illegal warrant," he "approached the court[, which] . . . was unaware of his November 9, 2009 acquittal." The court rescheduled the case to June 9 and then June 21, 2010. On June 21, 2010, the prosecutor, public defender, and Officer Nicosia attempted to persuade plaintiff to enter an agreement to hold the City of Newark and the officer harmless. Plaintiff responded that he had been acquitted on November 9, 2009, but the others ignored him. Officer Nicosia told plaintiff that his case had been "continued." The case was presented to the municipal court judge who remembered it, asked Officer Nicosia about its status, and was informed by the officer that the judge had acquitted plaintiff and the case had been dismissed. The judge then acquitted plaintiff a second time for the same charge.

Plaintiff alleged that the City of Newark,*fn3 the New Jersey Transit Police Authorities, and NJT "engaged in willful, malicious, and/or especially egregious acts done with the City of Newark's participation showing willful indifference to the wrongful conduct of the New Jersey Transit Police and [NJT]."

Alleging a "rush to judgment," and that he was innocent, plaintiff asserted that he had suffered damages, including emotional distress trauma, and was "afraid that the City of Newark will issue another illegal warrant for his arrest and he will be thrown into prison without cause and have to protect his 'life' while in his injured state." Plaintiff also alleged that he was "in physical therapy at the time for injuries sustained in a motor vehicle accident."

Plaintiff filed the initial complaint on July 22, 2010, against "New Jersey Transit and/or New Jersey Transit Police Authorities."*fn4 Plaintiff's attorney never served the complaint on NJT.*fn5 Consequently, in October 2010, plaintiff filed motions to remove his attorney, represent himself, waive a jury trial, and amend his complaint. The court granted plaintiff's motions on January 24, 2011, and defendants filed their motion to dismiss the complaint in lieu of an answer on February 25, 2011.

Several ensuing procedural events caused some confusion, but did not affect the disposition of defendants' dismissal motion. Although defendants served plaintiff with a copy of their motion on March 1, 2011, on March 3, 2011, plaintiff filed a request to enter default against NJT and the Department. Plaintiff averred that the defendants had been served on September 15, 2010, had not answered the complaint, and the time to answer the complaint had expired. Plaintiff did not advise the court that he had not served NJT; and did not disclose that he had filed an amended complaint. Default was entered on March 4, 2011. On March 17, 2011, plaintiff filed opposition to defendants' motion to dismiss. On March 25, 2011, the court sent plaintiff a notice that his complaint had been dismissed for lack of prosecution.

Notwithstanding the default and the dismissal of plaintiff's amended complaint for lack of prosecution, the court granted defendants' motion on April 1, 2011; dismissed the amended complaint with prejudice; and entered a confirming order. *fn6

Plaintiff filed a motion for reconsideration, which the court denied on May 27, 2011, for reasons expressed in a letter dated May 30, 2011. This appeal followed.

I.

We review a trial court's dismissal of a motion under Rule 4:6-2(e) "by the same standard as that applied by the trial court." Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). We must consider "as true, the facts alleged in the complaint to ascertain whether they set forth a claim . . . upon which relief can be granted." Ibid.

Plaintiff alleged in the prefatory paragraph of his amended complaint that defendants "maliciously prosecuted and discriminated against him without cause and denied to him his right to equal protection under the law." The trial court dismissed plaintiff's malicious prosecution claim because plaintiff had not timely served defendants with a notice of claim as required by the TCA. Plaintiff does not appear to contest that decision on this appeal. The decision was sound.

Indisputably, NJT "is a public entity within the ambit of the TCA." Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003). The TCA requires that a notice of claim be presented to the public entity "not later than the ninetieth day after accrual of the cause of action," N.J.S.A. 59:8-8, and claimants are "forever barred from recovering against a public entity or public employee" if they "fail[] to file [a] claim with the public entity within 90 days of accrual of [the] claim except as otherwise provided in section 59:8-9[.]" Ibid. The notice requirement applies to intentional torts, such as malicious prosecution claims. See Velez v. City of Jersey City, 180 N.J. 284, 293 (2004). See also Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 344 (App. Div.), certif. denied, 182 N.J. 147 (2004).

Plaintiff correctly argues that the TCA requirements concerning claim notices do not apply to claims alleging violations of an individual's constitutional rights. See Owens v. Feigin, 194 N.J. 607, 609, 614 (2008). Nonetheless, the trial court properly dismissed his civil rights claims.

Plaintiff argues that he has established a prima facie claim of discrimination under 42 U.S.C. § 1983 because he was denied equal protection under the law, Nicosia did not have probable cause to issue the summons, and an illegal warrant was issued after the order acquitting him was "erased" from the official record following the first municipal court trial.

Under 42 U.S.C. § 1983, only a "person" is subject to liability for discriminatory conduct. The State is not a "person" within the meaning of § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58 (1989). NJT is "an instrumentality of the State exercising public and essential governmental functions," N.J.S.A. 27:25-4, and is a public entity under the TCA, Muhammad, supra, 176 N.J. at 188, 194. As such, NJT is "a surrogate of the State," and therefore "is not a 'person' pursuant to 42 U.S.C. § 1983." Geod Corp. v. N.J. Transit Corp., 678 F. Supp. 2d 276, 288 (D.N.J. 2009). Because NJT is not a "person" within the meaning of 42 U.S.C. § 1983, the trial court properly dismissed plaintiff's complaint.*fn7

The trial court also properly dismissed the complaint against the Department. The Department "is established in the New Jersey Transit Corporation," N.J.S.A. 27:25-15.1, and is not a separate entity for purposes of 42 U.S.C. §1983. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997) (noting that for purposes of § 1983, municipalities and their police departments are treated as a single entity). Accordingly, the Department is not a "person" under § 1983.

Plaintiff also makes arguments based on the procedural anomalies that we have previously noted. For example, plaintiff argues that the court improperly decided defendants' motion when the defendants were in default. Plaintiff's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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