JAMES BAKER v. CITY OF ELIZABETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAMES BAKER,

Plaintiff-Appellant,

v.

CITY OF ELIZABETH,

Defendant-Respondent,

and

UNION COUNTY PROSECUTOR'S OFFICE,

Defendant.

____________________________________

December 18, 2015

Submitted August 18, 2015 Decided

Before Judges O'Connor and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3300-11.

James Baker, appellant pro se.

LaCorte, Bundy, Varady & Kinsella, attorneys for respondent (Christina M. DiPalo, on the brief).

PER CURIAM

Plaintiff James Baker appeals from the August 23, 2013 order denying his motion to vacate the September 14, 2012 order dismissing his complaint. We affirm.

On August 25, 2011, plaintiff filed a complaint in the Law Division against the Elizabeth Police Department alleging that, on August 12, 2010, an Elizabeth police officer unlawfully stopped, handcuffed, and searched plaintiff's car. When the search failed to yield any incriminating evidence, plaintiff was released; no charges were filed against him. Thereafter plaintiff complained to the Elizabeth Police Department and to the U.S. Attorney's Office about the officer's conduct.

Plaintiff further alleged in his complaint that on October 13, 2010, the same officer who had previously stopped him and three additional officers stopped his car, accused him of having heroin in his possession, and assaulted him while they held his hands behind him. Among other things, plaintiff claimed the officers violated his State and federal constitutional rights by engaging in acts against him that constituted "retaliation, intimidation, selective enforcement, racism, excessive force, official misconduct, willful misconduct, malice, and unlawful arrest." Plaintiff sought compensatory and punitive damages.

Plaintiff filed a second complaint on October 28, 2011 which he named as defendants the City of Elizabeth (City) and the Union County Prosecutor's Office (Prosecutor's Office).

Included in the second complaint was a letter to plaintiff dated April 29, 2011 from the Prosecutor's Office advising that it was not going to pursue a criminal complaint for official misconduct and assault against the officer who had stopped plaintiff on August 12, 2010 and October 13, 2010. The Prosecutor's Office explained there were insufficient facts to warrant prosecuting a complaint. Although his second complaint is somewhat unclear, read liberally, plaintiff claimed the newly added defendants engaged in "official misconduct, willful misconduct, [and] conspiracy to deprive plaintiff of his State and Federal, Civil and Constitutional Rights."

Although the date of the indictment was not provided, plaintiff was indicted for various acts arising out of the October 13, 2010 incident. Specifically, he was indicted for resisting arrest, N.J.S.A. 2C:29-2(a); assaulting four law enforcement officers, N.J.S.A. 2C:12-1(b)(5)(a); hindering, N.J.S.A. 2C:29-3(b)(1); and tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1).

On January 20, 2012, plaintiff pled guilty to fourth-degree hindering, N.J.S.A. 2C:29-3(b)(1). During the plea colloquy, plaintiff acknowledged that on October 13, 2010, several law enforcement police officers approached him and that he hindered his apprehension by "not immediately complying with them." Plaintiff also admitted that he swallowed heroin in an effort to thwart the police from finding heroin in his possession.

In July 2012, the City filed a motion to dismiss plaintiff's complaint for failure to state a claim pursuant to Rule 4:6-2(e). On September 14, 2012, the court consolidated both complaints, granted defendant's motion, and dismissed the complaint. Characterizing plaintiff's matter as a 1983 action,1 the court determined plaintiff's conviction for hindering extinguished his 1983 claims under Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383, 394 (1994). In Heck the Supreme Court stated

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. 2254 . . . . Thus, when a state prisoner seeks damages in a 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

[Id. at 486-87 (internal citations omitted) (emphasis omitted).]

Because plaintiff's conviction had not been invalidated, the trial court determined the holding in Heck required the dismissal of his complaint.

On January 11, 2013, a motion plaintiff had filed to "reinstate" his complaint was denied. The record does not disclose the basis upon which plaintiff sought to reinstate his complaint.

On August 23, 2013, a motion plaintiff filed to vacate the September 14, 2012 order under Rule 4:50-1 was denied. The record does not reveal the subsection under Rule 4:50-1 on which plaintiff relied in support of his motion to vacate the September 14, 2012 order. The court's decision denying the motion indicates plaintiff had argued that it dismissed the complaint "under a misapplication of the law." The court also noted that "[i]t is Mr. Baker's position that any judgment can be reconsidered based upon a claim that the law was mistakenly applied."

On June 10, 2014, we entered an order limiting plaintiff's appeal to the August 23, 2013 order.

On appeal, plaintiff argues the court abused its discretion when it dismissed the complaint under Heck, contending that even if he had hindered his apprehension during the October 13, 2010 incident, the police used excessive force after he had been subdued.

We need not address this contention, because the only issue before us is whether the trial court erred when it failed to vacate the September 14, 2012 order under Rule 4:50-1. This rule provides that

[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
 

[Rule 4:50-1.]

Plaintiff does not address in his moving brief the August 23, 2014 order or articulate how the trial court erred by failing to vacate the September 14, 2012 order under this Rule. The arguments in his moving brief are confined to the propriety of the court's September 14, 2012 ruling and whether the court properly dismissed the complaint under Heck.

In his reply brief, plaintiff argues "exceptional circumstances" were present, making an apparent reference to Rule 4:50-1(f) and the case law that requires that a party show "exceptional circumstances" in order to obtain relief under this subsection of the rule. See In re Estate of Schifftner, 385 N.J. Super. 37, 41 (App. Div.), certif. denied, 188 N.J. 356 (2006). Specifically, he contends that exceptional circumstances apply because the court erred when it applied Heck. Plaintiff also contends subsection (c) of this rule applies because defendant "committed a fraud on this court knowing that the Heck [] rule did not apply."

First, it is improper to raise an issue for the first time in a reply brief, see Warren Tp. v. Suffness, 225 N.J. Super. 399, 412 (App. Div. 1988) (citing State v. Smith, 55 N.J. 476, 488 (1970), cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970)), because respondent does not have an opportunity to respond to the newly asserted argument. Second, the arguments are entirely devoid of merit; they do not even warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm the August 23, 2013 order.

Affirmed.

1 42 U.S.C. 1983