KEVIN JACKSON v. GARY M. LANIGAN

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KEVIN JACKSON,

Plaintiff-Appellant,

and

MATT GREEN, MICHAEL SUAREZ,

TRAVIS GILLISPIE, and

JOSE DELACRUZ,

Plaintiffs,

v.

GARY M. LANIGAN, CINDY FORD,

GREG BARTKOWSKI, CHARLES WARREN,

GEORGE BYRD, and PAULA DOW,

Defendants-Respondents.

________________________________________

March 24, 2015

 

Submitted January 28, 2015 Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No.

L-3039-11.

Kevin Jackson, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondents (Lucy Fritz, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Plaintiff Kevin Jackson appeals from an order of the Law Division dated August 27, 2013, denying his motion to reinstate the pro se complaint that he and four other New Jersey State prison inmates filed against defendants, who are current or former New Jersey Department of Corrections officials and the former Attorney General of New Jersey.1 We affirm.2

In September 2011, Jackson and the other plaintiffs filed an eighteen-count complaint alleging constitutional and statutory violations and seeking injunctive relief and money damages. Plaintiffs alleged their rights were systematically violated by defendants because they were held "in 1-Left detention after fully completing their imposed sanctions [detention time and administrative segregation ("Ad. Seg.") time] by the administrative disciplinary officer . . . ." (bracketed phrase in original).

Plaintiffs never filed proof of service of a summons and the complaint on any of the defendants. Instead, in June 2012, Jackson moved to disqualify the State Attorney General's Office from representing defendants in the action because of an alleged conflict of interest. By letter dated June 20, 2012, a Deputy Attorney General (DAG) wrote to the judge to whom the motion was assigned opposing Jackson's motion. The DAG reported that no defendant had been properly served although the Attorney General's Office had received a copy of the complaint from Jackson by mail. The DAG stated he was not entering an appearance on behalf of any defendant because process to initiate contested litigation had not been properly completed. He argued further that the motion to disqualify the Attorney General's Office should be denied as premature and without merit. The court denied Jackson's motion by order dated July 10, 2012.

Before that motion was decided, however, on June 22, 2012, the Civil Case Management Office of the court issued an automated order pursuant to Rule 1:13-7 dismissing the complaint without prejudice for lack of prosecution.3

Immediately upon receipt of the dismissal order, Jackson prepared a motion dated June 27, 2012, to reinstate the complaint. On September 19, 2012, Jackson wrote to the court inquiring about the status of his motion. We have no record of any further action by the court or any of the parties until the court's August 27, 2013 order denying Jackson's motion to reinstate the complaint. The order indicates that the judge placed a decision on the record on that date, but Jackson has not provided to us a transcript of that decision.

Jackson's failure to provide a transcript is contrary to the requirements of Rules 2:5-3 and 2:5-4(a) and limits our ability to review the case on appeal. Nevertheless, the record contains enough information for us to conclude that Jackson's contentions on appeal must be rejected.

Nowhere in his briefs on appeal or supporting documents does Jackson indicate that he has complied with the personal service requirements of Rules 4:4-3 and 4:4-4 in serving a summons and complaint on any defendant. Instead, he contends incorrectly that mailed service is sufficient and also that he served defendants when he mailed a copy of the complaint to the Attorney General's Office. Mailed service of the summons and complaint may be authorized by the court, but only after a party demonstrates that "personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7 . . . ." See R. 4:4-3(a); see also R. 4:4-4(b)(1) (requirements for effecting personal service by mail). Jackson did not move before the trial court to authorize mailed service and did not obtain an order from the court permitting that alternative form of service.

Furthermore, neither Rule 4:4-4 nor any other rule authorizes substituted service of a summons and complaint against a State employee by serving the Attorney General's Office.

Jackson cites several rules of court Rules 1:5-1, 1:5-2, 1:5-6, and 1:6-3 in support of his argument that service can be made by mail. But those rules pertain to service of papers after a defendant has been served with initial process and is a participant in the litigation. Rule 1:5-1(a) specifically excludes "the original complaint" from those service rules.

Because Jackson has yet to provide proof that he has satisfied the requirements of service of initial process to require defendants to respond to his complaint, the court did not err in denying his motion to reinstate the complaint.

Affirmed.

1 Only Jackson filed a Notice of Appeal. The other plaintiffs have not participated in this appeal. It also appears that none of the other plaintiffs filed papers or participated in proceedings in the Law Division other than signing the complaint.

2 The order from which the appeal is taken does not indicate that it is with prejudice but is nevertheless appealable as of right as a final judgment under Rule 2:2-3(a)(1). See Cnty. of Morris v. 8 Court St. Ltd., 223 N.J. Super. 35, 38-39 (App. Div.), certif. denied, 111 N.J. 572 (1988).

3 Rule 1:13-7 states in relevant part

(a) . . . [W]henever an action has been pending for four months or . . . without a required proceeding having been taken therein as hereafter defined in subsection (b), the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice . . . unless, within said period, action specified in subsection (c) is taken. If no such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof. . . .

(b) The following events constitute required proceedings that must be timely taken to avoid the issuance by the court of a written notice of dismissal as set forth in subsection (a)

(1) proof of service or acknowledgment of service filed with the court; or

(2) filing of answer; or

. . . .

(c) The order of dismissal required by paragraph (a) shall not be entered if, during the period following the notice of dismissal as therein prescribed, one of the following actions is taken

(1) a proof of service or acknowledgment of service is filed, if the required action not timely taken was failure to file proof of service or acknowledgment of service with the court . . . .

 

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