JAMES TUCKER v. TERRANCE MOORE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2203-07T22203-07T2

JAMES TUCKER,

Plaintiff-Appellant,

v.

TERRANCE MOORE, ED KOCSERHA

and BEVERLY BROADUS SMITH,

Defendants-Respondents.

______________________________________________________

 

Submitted October 7, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, DC-7821-06.

James Tucker, appellant pro se.

Anne Milgram, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff James Tucker, an inmate at East Jersey State Prison, appeals from the dismissal of his small claims case against defendants, Terrance Moore, Ed Kocserha, and Beverly Broadus Smith, administrators at the East Jersey State Prison.

On February 26, 2004, an electrical fire erupted in E-trailer at the East Jersey State Prison where Tucker was being housed. During the fire, the personalty of Tucker as well as that of other inmates was destroyed. In a memorandum dated June 30, 2004, the prison offered to pay Tucker the sum of $280 in full compensation for his loss. This offer was rejected by Tucker, since he did not believe it adequately compensated him for his personalty destroyed in the fire.

Tucker then filed this small claims action against defendants on May 23, 2006, which is more than two years after the loss was incurred. A default judgment was entered against defendants on December 29, 2006, in the sum of $1559. Defendants thereafter moved to vacate the default judgment and, in the alternative, dismiss the complaint for failure to comply with the statute of limitations.

On August 30, 2007, the trial court granted defendants' motion to vacate the default judgment and dismiss the complaint, explaining its decision as follows:

This court did not have jurisdiction of this matter. Plaintiff should have appealed from the administrative process of the DOC [Department of Corrections] to the Appellate Division and his complaint filed in this Court was filed more than 2 [two] years after the fire which caused the damage. Thus, the Court will not transfer this case to the Appellate Division.

In this appeal, Tucker raises the following argument:

The Order Granting Summary Judgment in Favor of the Defendants Should be Vacated as the Previous Offer of the Department of Corrections was Arbitrary, and if This Decision Were Allowed to Stand it Would be in Conflict With Previous Rulings.

This argument refers to unreported appellate division cases involving claims of other inmates at East Jersey State Prison whose personalty was also damaged in the fire. Perez v. Moore, No. A-5119-04 (App. Div. June 6, 2006); Canty v. Moore and Sainvallier v. Moore, No. A-6242-04 and A-2799-05 (App. Div. Dec. 4, 2006); Mason v. Moore, No. A-2858-06 (App. Div. Apr. 19, 2007); Jones v. Moore, A-1434-06 (App. Div. Jan. 22, 2007); Glenn v. Moore, No. A-2096-06 (App. Div. Mar. 26, 2007). DOC offered the inmates compensation for their losses based on a uniform schedule for items of the same type. The plaintiffs rejected the DOC offers of compensation, and filed small claims cases against officials at the prison seeking higher compensation. We held that the complaints were in essence appeals of agency decisions and hence should have been brought in the Appellate Division. Treating the claims as appeals from agency decisions, we determined that the DOC's reliance on the schedule, at least with respect to certain larger items such as radios, televisions and word processors, was arbitrary. We remanded the cases and ordered the DOC to either explain its assignment of values or reevaluate the claims based on the actual value of the property.

In light of our rulings in these earlier cases, defendants here rely solely on a statute of limitations defense, which they maintain was not applicable in the earlier cases. The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, requires that claims against public entities and public employees be brought within two years of the accrual of the claim. N.J.S.A. 59:8-8(b). Here the cause of action accrued on the date of the fire when the personalty was damaged, namely on February 26, 2004. Since the complaint was filed on May 23, 2006, more than two years after that date, the claim is barred by the statute of limitations. See Rule 4:2-2 (stating that "[a] civil action is commenced by filing a complaint with the court"). We also note that even if we treat plaintiff's case as an administrative appeal, that appeal is untimely under Rule 2:4-1(b) which provides only forty-five days to appeal an agency decision.

 
Affirmed.

We note that plaintiff contends that he filed the complaint in August 2005, however, the court records indicate that it was filed on May 23, 2006.

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A-2203-07T2

October 30, 2008