R.T. v. OFFICE OF THE PUBLIC DEFENDER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

R.T.,

Plaintiff-Appellant,

v.

OFFICE OF THE PUBLIC DEFENDER, and/or

LEWIS SENGSTACKE ESQUIRE, JENNIFER

VALEZ, COMMISSIONER OF THE DEPARTMENT

OF HUMAN SERVICES, JEFFREY S. CHIESA,

ATTORNEY GENERAL OF NEW JERSEY,

CHRISTOPHER J. CHRISTIE, GOVERNOR

OF THE STATE OF NEW JERSEY, STEVEN

JOHNSON, STATE OF NEW JERSEY

DEPARTMENT OF CORRECTIONS, LYNN KOVICH,

ASSISTANT COMMISSIONER, DMHAS, ROBERT

CARLSON, KIMBERLY STOKES, CHRISTINE

DONNELLY, MANUEL ISER, SAMANTHA AMES,

JULIE MCBRIDE, DINO DECRISECE, JACKIE OTTINO,

STANTAY ADAMS, YANERIS CORNIEL, MERRILL

MAIN, HEATHER BURNETT, GILLIAN KLOS,

MARY CAHILL, CATHY BERGEN, RICHARD VAN PELT,

TINA SPAGNUOLO, TASHANA MITCHELL, TOM

CALABRESE, ROBERT BUECHELE, ASSOCIATE

ADMINISTRATOR, STATE OF NEW JERSEY

DEPARTMENT OF CORRECTIONS, J. LEKASZEWSKI,

MICHAL HYATT, JO ASTRID GLADING, ESQUIRE,

ANGEL SANTIAGO, SCOTT HALL, AMANDA WARE-

COOPER, and BRUCE DAVIS,

Defendants-Respondents.

February 23, 2016

Submitted February 1, 2016 Decided

Before Judges Carroll and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-153-13.

R.T., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondents (Melissa Raksa, Assistant Attorney General, of counsel; Rahat Babar, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff R.T. appeals from an August 13, 2014 Law Division order granting summary judgment to defendants, who are all agencies or employees of the State of New Jersey. We note plaintiff's briefs and appendix submitted for our review are muddled and lacking in procedural formalities designed for appellate review.1 Notwithstanding, we discern the following facts and procedural history from the record on appeal.

This matter has its genesis in a petition filed by the State on May 3, 2010, seeking to civilly commit plaintiff pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On May 10, an order was entered temporarily committing plaintiff to the Special Treatment Unit (STU), a secure facility for the treatment of persons in need of involuntary civil commitment under the SVPA, pending a final hearing.

On September 1, 2010, plaintiff filed a notice of claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. In his tort claim notice, plaintiff described the alleged wrongful conduct as follows: "To initiate civil commitment proceedings, the attorney general presented two clinical certificates prepared by two unlicensed psychiatrists, [] based on the attorney general's fraud." Plaintiff named the New Jersey Department of Correction[s] (DOC), the Attorney General (AG), the Department of Mental Health and Human Services (Human Services), and the STU as the agencies that caused him damage. He also identified AG Paula Dow, Governor Chris Christie, and various doctors from Human Services as the State employees who were at fault. Plaintiff further specified August 26, 2010, as the date of the occurrence giving rise to his claim.

Assistant Deputy Public Defender Lewis Sengestacke represented plaintiff at some point during his initial commitment proceedings. On January 7, 2013, plaintiff filed a complaint in the Law Division against Sengestacke and the Office of the Public Defender (PD), alleging he was not being adequately represented in the commitment proceedings. Accompanying the complaint was additional documentation, including plaintiff's certification and a "press release."

By letter dated April 1, 2013, the AG advised plaintiff that he was required to file an affidavit of merit with respect to his malpractice claim or risk having that claim dismissed. Plaintiff responded with his own affidavit dated April 15. In that affidavit, plaintiff asserted that his complaint against Sengestacke was based on "a lack of diligence by his attorney and he is not handling [plaintiff's] case to the best of his ability." Plaintiff further averred that Sengestacke was "negligent and ha[d] conspired against him to civilly commit him in New Jersey," despite the fact that plaintiff's predicate sexual offense originated in Pennsylvania.

Plaintiff initially sought injunctive relief by order to show cause (OTSC), which the trial court addressed on September 20, 2013. Judge Randal Chiocca noted that plaintiff had filed an amended complaint on March 15,2 and that he was now asserting claims against thirty-three parties.3 The judge expressed his confusion as to the claims plaintiff was attempting to assert. Ultimately, he construed plaintiff's claims to encompass a violation of plaintiff's civil rights, civil conspiracy, and a legal malpractice claim. Citing the well-established standards for granting injunctive relief set forth in Crowe v. DeGioia, 90 N.J. 126 (1982), Judge Chiocca denied plaintiff's OTSC, finding that he had failed to show a likelihood of ultimate success on the merits.

Following a period of discovery, defendants moved for summary judgment. They argued that because plaintiff's tort claim notice identified August 26, 2010, as the date of his injury, the complaint that was filed on January 7, 2013, was barred by the TCA's two-year statute of limitations. Additionally, Sengestacke and the PD sought to dismiss plaintiff's malpractice claim due to his failure to file an affidavit of merit.

Judge Michael Cresitello, Jr., heard argument on the motion on March 14, 2014. Plaintiff, participating by telephone, articulated his position that the AG, the DOC, and Human Services conspired with the civil commitment judge to have the PD improperly represent him. Plaintiff further contended that the PD was "liable for [] negligence and malpractice, based on fraud."

Like Judge Chiocca, Judge Cresitello found that it was "difficult to discern the precise causes of action" alleged in plaintiff's complaint. Based on his "careful review of the voluminous filings," the judge determined that plaintiff "appear[ed] to assert claims involving fraud, conspiracy, false imprisonment, civil rights violations, harassment and legal malpractice."

In his oral opinion, Judge Cresitello noted that, since all defendants were either State agencies or employees, plaintiff was required to comply with the procedural requirements of the TCA. The judge afforded plaintiff "every possible inference." This included deeming the September 1, 2010 tort claim notice to have been timely filed and to also encompass plaintiff's malpractice claim against the PD and Sengestacke even though the notice did not mention them. The court then concluded that plaintiff's complaint, which was not filed until January 7, 2013, was barred by the two-year statute of limitations set forth in N.J.S.A. 59:8-8(b).

Although that ruling "essentially end[ed] the inquiry" as to all defendants, the judge separately addressed plaintiff's legal malpractice claim. The judge found that "[a]t no time has [] plaintiff filed an adequate affidavit of merit, or requested a waiver [of the] requirement to do so." Further, the judge found that plaintiff's allegation of fraud "stem[med] from the alleged deviation from a professional standard, for which an affidavit [of merit] would be required." Consequently, plaintiff's malpractice claim was barred by his failure to comply with the statutory affidavit of merit requirement.

Notwithstanding these procedural bars, Judge Cresitello also addressed plaintiff's substantive claims and concluded they were without merit. He reasoned

As to the civil rights claims, again, they are not clearly pled by [] plaintiff, but nevertheless, [t]he [c]ourt finds the law well settled that . . . the [SVPA], including the enabling language therein, to permit involuntary civil commitments, is not [] violative of [] plaintiff's constitutional rights in this case.

Plaintiff alleges that [] defendants have engaged in a course of conduct which violates his civil rights, including the use of [a] fake diagnosis, without justifying any legal basis for such claim.

[P]laintiff has not alleged any medical negligence on [] behalf of [t]he State defendants. . . . [P]laintiff's claims, essentially, amount to an allegation that his diagnosis violates his civil rights. Even under the liberal pleading standard, no cause of action is even suggested . . . by the pled facts.

Lastly, with respect to the false imprisonment and wrongful incarceration[,] . . . to prevail on a claim for false imprisonment, [] plaintiff must prove an arrest or detention of the person against his or her will, and a lack of proper legal authority or legal justification. That is set forth in [Mesgleski v. Oraboni, 330 N.J. Super. 10 (App. Div. 2000)].

Again, . . . [t]he [c]ourt will afford every possible deference to [] plaintiff. [A]rguably, the first prong is met. [H]owever, the [c]ourt finds that there is no question of fact, as to [] plaintiff's inability and failure to meet the second prong of [] that standard.

On March 14, 2014, Judge Cresitello entered a memorializing order dismissing plaintiff's complaint without prejudice. The dismissal was converted to a dismissal with prejudice by order entered on August 13, 2014. Plaintiff's appeal followed.

First, we address a serious deficiency in plaintiff's appendix. In addition to the pleadings, the appendix must include "such other parts of the record . . . as are essential to the proper consideration of the issues." R.2:6-1(a)(1)(I). Specifically, if the appeal follows from the granting of a summary judgment motion, the appendix must include "a statement of all items submitted to the court . . . and all such items shall be included in the appendix, except" briefs. Ibid.

Here, plaintiff's appendix does not include an index or any pagination. More importantly, it does not include the summary judgment motion or a statement of items submitted to the court. As a result, we are unable to ascertain with any degree of clarity what documents were submitted supporting or opposing the motion. The judge referred to this record in reaching his decision. Such deficiencies hinder appellate review. Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002).

We review a grant of summary judgment under the same standard as the motion judge. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 405-06. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a [finder of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

The "guiding principle" of the TCA is "that immunity from tort liability is the general rule and liability is the exception." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013) (quoting Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005)). "The Legislature's waiver of sovereign immunity remains a limited one and [this court is] not free to expand that waiver beyond its statutorily-established boundaries." Id. at 158.

The Legislature has directed that "[n]o action shall be brought against a public entity or public employee under th[e] [TCA] unless the claim upon which it is based shall have been presented in accordance with the procedure set forth" by the Act. N.J.S.A. 59:8-3 (emphasis added). Claimants "shall be forever barred from recovering against a public entity" if, among other things, "two years have elapsed since the accrual of the claim." N.J.S.A. 59:8-8(b) (emphasis added). This statutory limitations period is reaffirmed in N.J.S.A. 59:8-9, which provides in pertinent part that "in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim." Failure to file a complaint within the two-year period will defeat the claim even where proper notice has been filed with a public entity. See Tower Marine, Inc. v. New Brunswick, 175 N.J. Super. 526 (Ch. Div. 1980).

The affidavit of merit statute requires a plaintiff filing suit against a licensed professional to have the case evaluated by an appropriately licensed person who will then attest under oath, "that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. The purpose of the statute is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Hubbard v. Reed, 168 N.J. 387, 395 (2001). "If a plaintiff fails to file the affidavit within 120 days, [the] complaint will be dismissed with prejudice unless extraordinary circumstances prevented the filing." Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001) (citing Cornblatt v. Barow, 153 N.J. 218, 247 (1998)); see also Tischler v. Watts, 177 N.J. 243, 246 (2003).

On appeal, plaintiff argues that the trial court erred in dismissing his complaint for failing to file an affidavit of merit within the two-year limitations period; that the court failed to address his fraud, negligence, false imprisonment, and malpractice claims; and that his civil commitment under the SVPA is tantamount to imprisonment in violation of the United States Constitution. We have considered these arguments in light of the record and applicable legal principles and conclude that they are unfounded and lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). None of plaintiff's contentions can circumvent his failure to comply with the TCA or the affidavit of merit statute and salvage his lawsuit, which on its face plainly lacks merit. We affirm substantially for the reasons expressed by Judge Cresitello in his cogent oral opinion.

Affirmed.

1 We have dismissed appeals before for failing to adhere to procedural guidelines. See Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984) (dismissing an appeal for procedural deficiencies); see also In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000) (holding the court was loathe to dismiss an appeal for procedural deficiencies but did so because the deficiencies made it impossible to properly review the matter).

2 Neither plaintiff's OTSC nor the amended complaint are part of the record on appeal.

3 With the exception of Sengestacke and the PD, we refer to the remaining defendants collectively as the State defendants.