DOUGLAS L. CHESTON v. MANUEL GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOUGLAS L. CHESTON,

Plaintiff-Appellant,

v.

MANUEL GONZALEZ and THE CITY

OF PATERSON,

Defendants-Respondents.

___________________________________

September 12, 2014

Submitted May 14, 2014 Decided

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0172-11.

Douglas L. Cheston, appellant pro se.

Hunt, Hamlin & Ridley, attorneys for respondent Paterson Police Officer Manuel Gonzalez (Ronald C. Hunt, of counsel and on the brief).

Grieco & DeFilippo, LLC, attorneys for respondent City of Paterson (Karen M. Buerle, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

In a pro se complaint dated November 22, 2010, plaintiff Douglas L. Cheston commenced this civil action against the City of Paterson and Paterson Police Officer Manuel Gonzalez, seeking compensatory damages for injuries he sustained when Officer Gonzalez "[f]ired his service weapon and shot [me] in my lower buttock[s]." After joinder of issues, mandatory arbitration in which plaintiff failed to appear, and completion of the discovery period, the Law Division scheduled the case for trial. It is undisputed that at all times relevant to this cause of action plaintiff has been confined in state prison serving a sentence for crimes that form the genesis of his civil claims against defendants.

When plaintiff failed to appear on the day of trial, the court dismissed the case for lack of prosecution. By letter dated December 10, 2012, plaintiff wrote to the trial judge directly, characterizing the communication as "in lieu of a more formal Motion[.]" He requested the court "to reopen or reinstate [the] civil compliant [sic]." Reminding the trial judge that he was "presently incarcerated and advancing all arguments pro se[,]" plaintiff asked the court to "issue a Writ of Appearance for all further proceedings in this matter." Citing Brunson v. Affinity Fed. Credit Union, 199 N.J. 381 (2009), plaintiff asked the court to consider utilizing "alternative Deposition methods" if his personal appearance at trial was not feasible.

There is nothing in the record before us to indicate that the court responded to plaintiff's December 10, 2012 correspondence. On June 3, 2013, plaintiff filed a formal motion to reinstate the complaint supported by a certification in which he asserted:

Because of my failure to appear for trial on November 5, 2012, [the trial judge] dismissed the complaint without prejudice. But my failure to appear was not intentional, nor done for the purposes of delay, but instead was the result of my incarceration.

I believe my complaint has merit and I want to participate in a trial of the issues. I therefore request reinstatement of my complaint.

Because I am still incarcerated at New Jersey Prison, and will continue to be so for the foreseeable future, I ask that the Court issue a writ directing prison personnel to transport me to the courthouse for any date set for trial or other court proceeding. Or that the Court approve my appearance at trial via video-conference.

Defendants presented opposition to plaintiff's motion. They noted that plaintiff had failed to appear for arbitration on July 6, 2012, without providing an explanation for his failure to request to be transported from prison or make alternative arrangements to participate. Although defendants claim the arbitrator recommended that the case be dismissed at that juncture, a different judge entered an order on July 9, 2012, denying the request for dismissal. The judge handwrote on the corner of the order the following statement of reasons: "Plaintiff is self represented and is presently incarcerated. Fundamental fairness precludes dismissal where plaintiff lacks the present capacity to appear for court proceedings."

The trial judge, who did not respond to plaintiff's December 10, 2012 letter, denied his formal motion to reinstate his complaint. The judge gave the following reasons for his decision:

Plaintiff is entitled to represent himself. This however does not provide him with special privileges nor is the Court compelled to provide him with legal advice on things such as how to get a Writ so that he is able to be transferred to Passaic County Prison so that he then can be transported to the Court for his trial. Plaintiff failed to appear for arbitration. Despite that, the court did not dismiss the case but instead set a date for trial. The Court then instructed Plaintiff that he was responsible for filing the necessary writs to be able to appear. Plaintiff failed to appear and waited for 7 months to file this motion.

Against this backdrop, plaintiff argues the court erred in denying his motion to reinstate. We disagree with plaintiff and affirm. Plaintiff's reliance on Brunson is misplaced because the plaintiff in that case was an out-of-state litigant who was represented by counsel. Under those circumstances, the Supreme Court held that the trial court should have considered "reasoned, intermediate steps between the outright dismissal of the complaint and allowing plaintiff's claims to go forward in his absence that should have been explored." Brunson, supra, 199 N.J. at 405-06. Here, by contrast, plaintiff did not make any efforts to arrange for alternatives to his actual personal appearance. Plaintiff operated under the implicit assumption that his criminal custodial status was enough to shift the burden of procuring his appearance in this civil action to the court. We discern no basis to conclude the court erred in denying plaintiff's motion seeking to reinstate the complaint that was dismissed seven months earlier.

There is, however, a particular procedural issue we are compelled to address. Defendant City of Paterson filed a motion for summary judgment before the scheduled trial date. In denying defendant's motion, the trial judge noted that under Rule 4:46-1, "[a]ll motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date." Unfortunately, this part of Rule 4:46-1 was taken completely out of context. The Rule actually reads as follows:

All motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date, unless the court otherwise orders for good cause shown, and if the decision is not communicated to the parties at least 10 days prior to the scheduled trial date, an application for adjournment shall be liberally granted.

[R. 4:46-1 (Emphasis added).]

As defendants emphasize in their appellate briefs, in denying the City's motion for summary judgment, the court failed to consider the difficulties the City encountered in procuring a copy of an extensive investigation report of the shooting incident prepared by the Passaic County Prosecutor's Office. The case was originally scheduled for trial on October 1, 2012. The City originally requested the court to adjourn the trial for forty-five days to afford it "sufficient time to obtain the Prosecutor's file from the underlying criminal case and to file a motion for summary judgment." When the court adjourned the trial date to November 5, 2012, the City "immediately" filed motions for summary judgment. Plaintiff did not oppose the City's summary judgment motion.

The Prosecutor's investigation report reveals that the incident that formed the basis of plaintiff's civil claims against these defendants began at approximately 9:47 p.m. on October 29, 2009. At the time, Paterson Police Captain Troy Oswald received a 911 call reporting that the occupants of a tan Ford Expedition were pointing a handgun out of the vehicle's window at an unidentified individual. The 911 caller also described the vehicle's direction of travel. Captain Oswald responded to the call along with other Paterson police officers, including Officer Manuel Gonzalez who was driving a separate patrol car accompanied by his partner who was seated in the front passenger side of the patrol car.

After a high speed pursuit through the streets of Paterson, Captain Oswald and his fellow officers were finally able to stop the Ford Expedition. Officer Gonzalez positioned his patrol car to block the Ford Expedition. We describe what transpired from this point by quoting directly from an investigation report of the incident issued by the Passaic County Prosecutor's Office:

Officer Gonzalez observed the front passenger (Douglas Cheston) exit the vehicle. Officer Gonzalez observed the suspect with a silver handgun in his hand. As the suspect moved away from Officer Gonzalez, the suspect stumbled and swiveled towards officer Gonzalez with the gun pointed in his direction. Officer Gonzalez yelled "Gun" and immediately drew his weapon and in fear for his life discharged his firearm. Officer Gonzalez then began to pursue the suspect on foot through the Dunkin Donuts/Popeye's parking lot located on the corner of Market Street and Memorial Drive. Officer Gonzalez observed the suspect throw the handgun under a parked van located at the Popeye's drive up window.

Plaintiff and the three other occupants of the vehicle were all indicted on multiple counts of possession of illicit drugs and unlawful possession of firearms. Plaintiff was forty years old at the time of this incident. He pled guilty pursuant to a negotiated agreement with the State to a number of drug-related offenses and one count of second degree unlawful possession of a firearm while in the course of committing a drug offense. N.J.S.A. 2C:39-4.1(a). The court sentenced him consistent with the plea agreement to a term of five years with three years of parole ineligibility.

Plaintiff was also on parole for an unrelated crime at the time he was arrested in connection with this incident. The Parole Board found this incident constituted a violation of the conditions of his parole. Plaintiff was confined in the Passaic County Jail awaiting disposition of these new charges until September 2011, when he was transferred to the custody of the State Department of Corrections to complete the remainder of the term from which he had been paroled. He was transported back to the Passaic County Jail on January 13, 2012, to be sentenced for these offenses.

These facts stood uncontested before the trial court when defendant City of Paterson moved for summary judgment. Plaintiff's pro se pleading merely describes the alleged physical injuries he sustained as a result of being shot by Officer Gonzalez. Plaintiff has not identified any theory of liability against the City or the officer himself that would entitle him to any relief against these defendants under the uncontested facts before the court.

Under these circumstances, the trial court had the opportunity to address the merits of plaintiff's claims and decide, as a matter of law, whether there were sufficient legal grounds and alleged evidence for the case to be decided by a jury. The court's decision to deny the City's motion for summary judgment because the motion was filed less than thirty days before the scheduled trial date was a misapplication of Rule 4:46-1 because it ignored the part of the rule permitting the court to relax this time restriction for "good cause shown."

Dismissal with prejudice in response to a procedural infraction should be used as a sanction of last resort. Our Supreme Court has made this admonition clear in a variety of contexts. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115-16 (2005). Although the court's decision to dismiss plaintiff's complaint with prejudice based on his failure to appear at the time of trial does not constitute an abuse of discretion, it nevertheless constitutes a lost opportunity to achieve complete vindication of defendants' action based on the lack of evidence presented by plaintiff.

Affirmed.