LORENZO OLIVER v. YVONNE LEE, LT. M. KADY, and DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2059-08T3
2059-08T3

LORENZO OLIVER,

Plaintiff-Appellant,

v.

YVONNE LEE, LT. M. KADY, and

DEPARTMENT OF CORRECTIONS,

Defendants-Respondents.

_______________________________________

 

Submitted November 18, 2009 - Decided

Before Judges Sabatino and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6590-08.

Lorenzo Oliver, appellant pro se.

Anne Milgram, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christina J. Deleveaux, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Lorenzo Oliver, appeals an order entered November 7, 2008, granting summary judgment to defendants, Yvonne Lee, Lt. M. Kady, and the Department of Corrections (DOC). The order dismissed his complaint with prejudice "pursuant to R. 4:6-2(e)." Plaintiff also appeals another order dated November 7, 2008, denying his motion to extend time for discovery. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiff is an inmate confined at Northern State Prison in Newark, New Jersey. On October 14, 2007, plaintiff was an inmate at East Jersey State Prison and was working as a dishwasher. Co-defendant Lee, a training instructor, was standing behind him, with her back towards him. Plaintiff allegedly touched Lee's buttocks at that time. Plaintiff was consequently charged with disciplinary violations for sexual assault and unauthorized physical contact. He was thereafter transferred to Northern State Prison and held in administrative segregation for pre-hearing detention. On November 5, 2007, the charges against plaintiff were dismissed.

On November 8, 2007, plaintiff filed an appeal seeking to be transferred back to East Jersey State Prison. That appeal was dismissed by way of summary disposition. See Oliver v. Power, No. A-1695-07 (App. Div.). On December 31, 2007, plaintiff wrote a letter to the Attorney General, "requesting that your office file a criminal complaint formally against Ms. E. Lee." He requested that the Attorney General charge Ms. Lee with various criminal offenses arising from what he claimed to be false allegations. Evidently, no response was received to that letter.

On August 12, 2008, plaintiff filed a suit against defendants Lee, Kady, and DOC for damages allegedly arising from the dismissed disciplinary charges referred to above. Plaintiff, however, did not file a notice of claim prior to instituting the suit as required by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. N.J.S.A. 59:8-8(a) requires that notice of such a claim need be filed with a public entity within ninety days of accrual of a claim except as otherwise provided in N.J.S.A. 59:8-9.

On or about October 7, 2008, the Attorney General's Office filed a motion for summary judgment with a return date of November 7, 2008. On October 19, 2008, plaintiff wrote to the trial court advising it that he had "run into difficulty in attempting to answer the defendants, (Dept. of Corrections) motion for Summary Judgment." He advised the court that he was having difficulty gaining access to the prison law library to prepare his response. On October 23, 2008, plaintiff filed a "motion for extension of time to answer the motion for summary judgment pursuant to R. 4:46-1." In that motion, the plaintiff sought an extension of time to answer the summary judgment motion. He cited to his inability to get access to the prison law library when he requested it as the reason for the extension.

On October 30, 2008, plaintiff claims he filed in the trial court a motion for leave to file a late notice of claim, together with supporting documents. In his supporting papers, he claims he was prohibited from using the law library and, therefore, was unable to conduct the appropriate research to determine what steps had to be taken to perfect his claim against the co-defendants in this matter. The Superior Court, Law Division's Automated Case Management System does not show that that motion was ever received. Further, the trial court did not address the motion in its November 7, 2008, order at which time the trial court granted summary judgment, dismissing the complaint with prejudice and denying the motion for an extension of time. The record supplied to us does not contain any transcript, memorandum, or other writings setting forth the trial court's findings of fact and conclusions of law with respect to this entire matter.

On appeal plaintiff presents the following three points for our consideration:

Point One

COURT ABUSED ITS DISCRETION IN DISMISSING INMATE OLIVER'S TORT CLAIM ON SUMMARY JUDGMENT WHEN INFORMAL NOTICE OF CLAIM WAS SUFFICIENT TO MEET REQUIREMENTS UNDER TORT CLAIMS ACT, AND DOCTRINE OF SUBSTANTIAL COMPLIANCE SHOULD HAVE BEEN INVOKED TO PREVENT DISMISSAL OF HIS CLAIM IN VIOLATION OF N.J.S.A. 59:8-8 & 59:8-9, PROTECTED UNDER THE DUE PROCESS CLAIMS, 14TH AMEND, U.S. CONST.

Point Two

THE COURT ABUSED ITS DISCRETION BY DENYING TO HEAR AND ADJUDICATE INMATE OLIVER'S MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM, DEPRIVING HIM OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO COURT ACCESS, TO PETITION FOR REDRESS OF GRIEVANCES AND TO BE HEARD IN VIOLATION OF THE 1ST, 6TH AND 14TH AMEND, U.S. CONST. N.J.S.A. CONST. ART. PARA 1.

Point Three

COURT ABUSED ITS DISCRETION BY DENYING INMATE OLIVER'S MOTION TO EXTEND THE TIME IN WHICH TO ANSWER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

The New Jersey Tort Claims Act requires a person who wishes to pursue a claim under the Act to provide notice of his claim to the public entity within ninety days of the accrual of his claim, except as otherwise provided in N.J.S.A. 59:8-9. N.J.S.A. 59:8-8a. The claim must contain certain required information as set forth in N.J.S.A. 59:8-4. Plaintiff argues his December 31, 2007, letter met that requirement or was acceptable under the doctrine of substantial compliance.

N.J.S.A. 59:8-9 provides relief to a claimant who fails to file his claim within ninety days. The statute permits, at the discretion of a judge, a notice of claim to be filed at any time within one year after the accrual of plaintiff's claim, provided that the public entity or the public employee has not been substantially prejudiced thereby and that the claimant can show sufficient reasons constituting "extraordinary circumstances" for his failure to have filed notice within the ninety-day period. In this case, we have nothing in the record that sets forth the court's findings of fact and conclusions of law regarding the issues presented.

Rule 1:7-4(a) requires that a "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right

. . . ." This Rule requires a court when deciding a matter on a motion to support its decision with adequate findings of fact. Cameco, Inc. v. Gedicke, 157 N.J. 504, 509 (1999). As we said in Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008):

"Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). "The absence of adequate findings . . .

necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996).

We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so. Barnett and Herenchak, Inc. v. State Dep't. of Transp., 276 N.J. Super. 465, 473 (App. Div. 1994).

We find that the trial court here, based on the record submitted to us, failed to make specific findings of fact and conclusions of law necessary for us to review the trial court's decision. Accordingly, we vacate the November 7, 2008, orders without prejudice, and remand to afford the court the opportunity to set forth its findings of fact and conclusions of law with respect to the motions decided by it and to ascertain whether the plaintiff's motion for leave to file notice of a late claim was in fact timely received by the court and, if so, whether it had merit. We do not retain jurisdiction.

Vacated and remanded.

(continued)

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A-2059-08T3

December 11, 2009