ANTHONY BOONE - v. GREGORY HALL

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3106-07T33106-07T3

A-3107-07T3

ANTHONY BOONE,

Plaintiff-Appellant,

v.

ALFARO ORTIZ,

Defendant-Respondent.

______________________________

ANTHONY BOONE,

Plaintiff-Appellant,

v.

GREGORY HALL and MELVIN SMITH,

Defendants-Respondents.

______________________________________________________

 

Submitted March 4, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8541-05 and Mercer County, Docket No. L-544-06.

Anthony Boone, appellant pro se.

Anne Milgram, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Keith S. Massey, Jr., on the briefs).

PER CURIAM

In these back-to-back appeals which we have consolidated into of a single opinion, plaintiff Anthony Boone appeals from orders entered in each case dismissing his complaints with prejudice. We have considered the arguments he raises in light of the record and applicable legal standards. We affirm as modified the dismissal of plaintiff's complaint against two corrections officers alleging violation of his civil rights, that is the subject of A-3106-07. We dismiss the appeal in A-3107-07 because it is procedurally deficient to the point of prohibiting any meaningful review.

As to A-3106-07

On August 25, 2005, plaintiff, an inmate at East Jersey State Prison, filed his complaint in the Law Division, Middlesex County, against defendant Alfaro Ortiz, and other officers at the facility. The actual complaint is not part of the record. We glean from the briefs, however, that plaintiff complained about the physical conditions at the facility, and the loss of or damage to his personal property. After several attempts to effect service failed, defendants were properly served and filed an answer on March 23, 2007. Although there are no documents in the record reflecting the procedural history thereafter, it is apparently conceded that two initial trial dates were set, one in June, the other in November 2007. Both were adjourned, the latter at the request of defendants who wanted to obtain more discovery. On October 24, 2007, the court served plaintiff with a form notice advising him that trial was now set for January 14, 2008.

Plaintiff served a letter, dated November 27, 2007, upon the "Clerk of the Superior Court," at the Middlesex County Courthouse in New Brunswick. There is no indication he served a copy upon the Department of Corrections. In it, he requested a "Court Order or Writs To Be Issued, concerning [his] appearance" at trial. Referencing an earlier motion to produce he had served, but for which he had not "received a[] ruling[,]" plaintiff also listed twenty-two items "to be produced" at trial, most of which were foodstuffs. Plaintiff admits his letter was returned to him with an attached hand written note that said, "No fee enclosed." Apparently without regard to this occurrence, on December 9, 2007, plaintiff served subpoenas for six witnesses upon the "Deputy Clerk of the Court[,]" Gregory Edwards, in New Brunswick. The stamped receipt from Edwards' office, however, indicates the request did not reach him until January 14, 2008, the date of trial. Plaintiff's cover letter requested Edwards to "process the[] documents."

On January 9, the deputy attorney general representing defendants served upon the civil division manager a written request to adjourn the trial date. He noted that since plaintiff was "a state inmate, [he was] unable to confer with him to obtain his consent to an adjournment." Counsel continued, "To my knowledge, no writ has issued to produce him for trial." A copy of the request was served upon plaintiff by regular mail.

Defendants' request was denied, though the record fails to reflect how the denial was conveyed to defense counsel, and whether, if at all, it was conveyed to plaintiff. In any event, defendants appeared for trial on January 14; plaintiff did not. The judge entered a form order dismissing the complaint with prejudice, noting "plaintiff failed to appear." The judge included the following handwritten comments on the order:

Complaint dismissed, failure to appear at trial. Court is aware that pro se plaintiff is an inmate at E. Jersey State Prison, but no motion to produce inmate has been filed by plaintiff.

On January 18, the civil division manager sent plaintiff a letter advising that his subpoenas were received on January 14, and were being returned in light of the dismissal of the complaint. He advised plaintiff that "[i]f [he] wish[ed] to continue [his] action," he needed to move for reinstatement. Plaintiff never moved for reinstatement and this appeal ensued.

Most of plaintiff's brief is consumed with an argument regarding the merits of his complaint, an issue not before us. His entire legal argument on the only salient point on appeal, i.e., whether his complaint was properly dismissed, is contained in one sentence: "There was no logical [r]eason, [u]nderstanding or [j]ustification for [the trial judge]" to dismiss the complaint given his "knowledge of defendants (sic) counsel['s] request[] for an adjournment." He contends in his reply brief that the judge was required to issue a writ to produce him from the facility.

Rule 1:2-4(a) provides in pertinent part,

If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party . . . on the day of trial, . . . the court may order any one or more of the following: . . . (c) the dismissal of the complaint . . . .

Dismissal of a complaint based upon the non-appearance of an attorney "must be a recourse of last resort not to be invoked unless no lesser penalty is adequate . . . ." Pressler, Current N.J. Court Rules, comment 1 on R. 1:2-4 (2009). "At least the same degree of indulgence applies to the non-appearance of a pro se party." Ibid. A dismissal under the rule is generally without prejudice, unless the court finds good cause to order otherwise. Woodward-Clyde Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464, 471 (1987). Dismissal with prejudice is not appropriate unless the circumstances present "egregious conduct on the part of a plaintiff." Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994). The same standards apply to pro se litigants. Id. at 394.

Pursuant to paragraph eight of the "Statewide Adjournment Procedure for Civil Trials and Arbitrations," Directive #6-04 issued May 14, 2004, once an adjournment is requested, a "[t]imely response will be given to the party requesting the adjournment, who will then be responsible for communicating the decision to all other parties." The record fails to disclose when and why defendants' request for an adjournment was denied. No transcript from the day of trial was supplied, if indeed one exists. However, defendants have not asserted that they, or the court, ever apprised plaintiff of the results of their request.

Of course, that does not excuse plaintiff's failure, in the first instance, to arrange for an order to produce him for trial. Pursuant to N.J.A.C. 10A:3-9.6(a), "An inmate shall only be produced in court by a writ of habeas corpus . . . or other order to produce which is to be received by Central Medical/Transportation 48 business hours prior to the scheduled court appearance." There is no authority for the proposition that it was the court's responsibility to issue the writ sua sponte. When plaintiff's initial November 27, 2007 letter was rejected and returned to him, it was incumbent upon him to rectify the situation, even if he was without fault.

We are, however, perplexed by the handwritten notation that was attached in response to plaintiff's request, "No fee enclosed." The State concedes that when "[t]he cause of action is related to the inmate's confinement[,]" as in this case, the costs of transporting him "will be paid by the Department of Corrections[.]" N.J.A.C. 10A:3-9.13(a)(1). If the rejection of plaintiff's request to be produced for trial was based upon his failure to pay the costs of his transportation, that was in error. Similarly, if the "No fee enclosed" notation referred to the failure on the part of plaintiff to pay the fees associated with the filing of a motion, the division manager's letter acknowledged plaintiff had been granted indigent status "in th[e] matter."

We conclude that the dismissal of the complaint was not a mistaken exercise of the judge's discretion because it was occasioned by plaintiff's "failure to give reasonable attention to the matter." R. 1:2-4(a). However, the circumstances presented do not amount to "egregious conduct" and there is no good cause demonstrated that requires the extraordinary remedy of dismissal with prejudice. We therefore affirm dismissal of the complaint without prejudice, and remand the matter for the entry of an appropriate order. Defendant may move to reinstate the complaint if he so chooses, and, given the dearth of material in the record from both sides, we express no opinion as to the bona fides of such a request.

As to A-3107-07

In this matter, plaintiff's notice of appeal challenges the January 18, 2008 order dismissing his complaint with prejudice, and denying his motion for default judgment as moot. The defendants' appellate brief argues the complaint was properly dismissed for failure to state a claim. Plaintiff did not supply us with a copy of the complaint. The order has no written statement of reasons for the decision, and we have not been supplied with any transcript of the proceedings, if one exists. Plaintiff has not supplied us with any papers submitted in opposition to the motion to dismiss, though the judge's order indicates the motion was opposed.

Rule 2:6-2(a)(4) requires an appellant's brief to contain all facts "material to the issues on appeal supported by references to the appendix and transcript." Although plaintiff's brief contains allegations regarding his administrative complaints of maltreatment at defendants' hands, without the complaint, we are unable to determine the significance of these factual allegations to the legal question presented, that is, did they state a cause of action as pled? Rule 2:6-1(a)(1)(A) requires plaintiff's appendix to include all pleadings in the action. Unlike the appeal we have decided above which was primarily based upon a procedural issue, in this case, the failure to comply with the rules has denied us the essential elements of a record upon which to conduct our review. Pursuant to Rule 2:8-2, we may dismiss an appeal because of procedural defects, particularly when the deficiencies make it impossible to review the issues on their merits. In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000); R. 2:8-2; R. 2:9-9; Pressler, Current N.J. Court Rules, comment 1.2.8 on R. 2:8-2, and comment on R. 2:9-9 (2009) (collecting cases). Such is the case here. We therefore dismiss plaintiff's appeal.

Appeal A-3107-07 is dismissed.

The notice of appeal names defendants "Alvaro Ortiz, et. al." The names of the other defendants are not contained in the appellate record.

This document also is not in the record.

To the extent plaintiff makes other arguments in his original and reply briefs, they are clearly without merit and do not require consideration in this written opinion. R. 2:11-3(e)(1)(E).

(continued)

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A-3106-07T3

June 4, 2009