GABRIEL IANNOCONE v. BOROUGH OF GLEN RIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5415-08T25415-08T2

GABRIEL IANNOCONE,

Plaintiff-Appellant,

v.

BOROUGH OF GLEN RIDGE,

HONORABLE JOSEPH T. CONNOLLY, J.M.C.,

STEPHEN C. BERRY, JR., MCA,

SUSAN J. BARONE, ESQ.

JOHN N. MALYSKA, ESQ.,

Defendants-Respondents.

________________________________

 

Submitted July 20, 2010 - Decided

Before Judges Gilroy and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2146-09.

Gabriel Iannacone, appellant pro se.

O'Toole Fernandez Weiner Van Lieu, LLC, attorneys for respondents Borough of Glen Ridge and Stephen C. Berry, Jr. (John B. Monahan, on the brief).

Madden & Madden, P.A., attorneys for respondents The Honorable Joseph T. Connolly, J.M.C., Susan J. Barone, Esq., and John N. Malyska, Esq. (Timothy R. Bieg, on the brief).

PER CURIAM

Plaintiff Gabriel Iannocone appeals from the May 28, and September 11, 2009 orders that collectively dismissed his complaint for failure to state a claim upon which relief could be granted pursuant to Rule 4:6-2(e), and from the June 26, 2009 order that denied his motion to file an amended complaint. For reasons that follow, we affirm in part, and dismiss in part.

On March 16, 2009, plaintiff, then an inmate at the Northern State Prison in Newark, filed a single-count civil rights complaint under the Federal and State constitutions against defendants Borough of Glen Ridge; Joseph T. Connolly, in his capacity as the Borough's Municipal Court Judge; Stephen C. Berry, Jr., in his capacity as the Borough Municipal Court Administrator; Susan J. Barone, Esq., in her capacity as the Borough Municipal Prosecutor; and John N. Malyska, Esq., in his capacity as the Borough attorney. In the complaint, plaintiff alleged that defendants had violated his civil rights when he "was lodged in the Glen Ridge Municipal Jail from August 31, 2000 through September 26, 2000 without a shower," and without access to a telephone, mail, an attorney, recreation, clean laundry, clean bedding, and medical services. Plaintiff also contended that defendants had wrongfully denied him "access to the courts [and] appointment of counsel." As to the allegation that he was denied access to the courts, plaintiff asserted that for the past eight years while incarcerated, he had made demands upon defendants to schedule a hearing on an outstanding municipal court warrant for contempt of court relating to a disorderly persons offense of issuing a check knowing that it would not be honored by the drawee, N.J.S.A. 2C:21-5c, to which offense appellant had pled guilty on November 26, 2000. Appellant contended that defendants never responded to his demands for a hearing on the outstanding contempt warrant.

On April 20, 2009, the Borough and Berry (collectively hereinafter referred to as the Borough) filed a motion seeking to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted, pursuant to Rule 4:6-2(e), contending that the complaint was time barred. On April 22, 2009, plaintiff filed a motion seeking leave to file an amended complaint. On April 30, 2009, the Borough re-filed its motion to dismiss. On May 28, 2009, the trial court, unaware of plaintiff's pending motion to file an amended complaint, granted the Borough's original motion to dismiss for failure to state a claim on the basis that "plaintiff's claims are barred by the statute of limitations because the complaint was filed more than two years after the cause of action arose."

On June 26, 2009, the court heard argument on plaintiff's motion seeking leave to file an amended complaint, with plaintiff appearing telephonically. Acknowledging that plaintiff's motion to file an amended complaint was filed prior to the May 28, 2009 order dismissing the complaint, the trial court allowed plaintiff to reargue the motion to dismiss the complaint.

During the argument, plaintiff acknowledged the untimeliness of the complaint as it pertained to his claim for damages arising from his incarceration in the Borough's jail in 2000: "Now, if you want to say that my -- how I was held in the jail and I believe I was forced into a plea is barred [as] too old, I understand that. It's -- it's nearly nine years old. But my present claim that's constant is my -- I'm being denied my civil rights to -- my First Amendment right [of] access to the court." As to plaintiff's claim for denial of access to the courts, plaintiff advised the court that he was "not looking for damages or anything like that. I just want to have my -- my case adjudicated." "I am making an oral argument for summary disposition right now. My motion would be that the [c]ourt direct the Glen Ridge Municipal Court to hear this in the next 30 days, and then it will be over right now and here." On the day of argument, the court denied the motion to amend, impliedly reaffirming its prior decision granting the motion to dismiss for failing to state a claim upon which relief could be granted.

On July 1, 2009, plaintiff filed his notice of appeal (NOA) from the May 28, and June 26, 2009 orders. In the interim, defendants Connolly, Barone, and Malyska, not having been personally served with the summons and complaint, and desiring to protect their interests, filed a Rule 4:6-2(e) motion on August 5, 2009, seeking to dismiss plaintiff's complaint against them on several bases, including that the complaint was time barred. On August 10, 2009, plaintiff consented to the dismissal, providing that the dismissal was on the same grounds (statute of limitations) as the court had dismissed the complaint as to the Borough. On September 11, 2009, the court dismissed plaintiff's complaint pursuant to Rule 4:6-2(e) as to defendants Connolly, Barone and Malyska.

On November 18, 2009, plaintiff was afforded a hearing on the municipal court contempt charge. On December 1, 2009, we entered an order granting plaintiff's motion for leave to file an amended NOA to include an appeal from the September 11, 2009 order.

On a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim, the court applies an indulgent standard. "'[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn'" therefrom. Burg v. State, 147 N.J. Super. 316, 319 (App. Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977). Every reasonable inference is accorded the plaintiff, Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), and the motion is "granted only in rare instances and ordinarily without prejudice." Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2010).

While the "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," Printing Mart-Morristown, supra, 116 N.J. at 746, the reviewing court must "view the allegations with great liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). Accordingly, "the test for determining the adequacy of a pleading [is] whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). In applying this test, a court treats the plaintiff's version of the facts as set forth in his or her complaint as uncontradicted and accords it all legitimate inferences. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005). On appeal, our standard of review is the same as the trial court's. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005).

It is against these principles that we consider appellant's argument that the trial court erroneously dismissed his complaint as time barred. We affirm, albeit in part for a different reason than that annunciated by the trial court.

The trial court correctly dismissed that part of the complaint seeking damages based on defendant's incarceration in the Glen Ridge municipal jail in 2000. The statute of limitations governing civil rights violations is two years. Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 24 (3d. Cir. 1989). However, the same cannot be said as to plaintiff's allegation that he was denied access to the courts, plaintiff contending that the defendants' inactions continued over eight years while he was incarcerated in State prison. Nonetheless, without addressing the viability of plaintiff's contention, we dismiss that claim as moot.

An order or judgment will be affirmed on appeal even if on different grounds than those provided by the trial court. Bryant v. City of Atl. City, 309 N.J. Super. 596, 629 (App. Div. 1998). "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." New York S. & W. R. Corp. v. State, Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985).

Here, plaintiff advised the court on June 26, 2001, that he was not seeking damages on his claim that defendants had wrongfully denied him access to the courts; rather, he was only seeking an order directing the Glen Ridge Municipal Court to resolve the outstanding contempt warrant prior to maxing out on his prison term. This occurred in November 2009. Accordingly, that part of plaintiff's complaint is moot.

We have considered the balance of plaintiff's arguments and determine that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part; dismissed in part.

 

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A-5415-08T2

August 6, 2010