Annotate this Case






WALTER A. TORMASI, in his individual

capacity and on behalf of ADVANCED


representative ad prosequendam,



GEORGE W. HAYMAN, Department of

Corrections (DOC) Commissioner;

JAMES BARBO, DOC Director of Division

of Operations; MICHELLE RICCI, New Jersey

State Prison (NJSP) Administrator; JEFFREY

BELL, NJSP Associate Administrator; JAMES

DRUMM, NJSP Associate Administrator; DONALD

MEE, JR., NJSP Associate Administrator;


Administrator; DEREK BUTLER, Special

Investigation Division (SID) Investigator;


(first name unknown), SID Investigator;


VICTOR SIERRA, SID Investigator; and


individually and in their official capacities,



April 15, 2016


Submitted April 21, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1846-09.

Walter A. Tormasi, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief.)

The opinion of the court was delivered by


Plaintiff Walter A. Tormasi appeals pro se from a Law Division order dismissing his inverse condemnation complaint with prejudice against defendants Commissioner of the New Jersey Department of Corrections (DOC) George W. Hayman, Director of the Division of Operations within DOC James Barbo, New Jersey State Police (NJSP) Administrator Michelle Ricci, NJSP Associate Administrators Jeffrey Bell, James Drumm, Donald Mee, Jr., and Charles Warren, and Special Investigative Division Investigators Derek Butler, Ralph Dolce, Harrison1, William Maginnis, Victor Sierra, and Vincent Wojciechowicz. For the reasons that follow, we affirm.


Plaintiff is an inmate currently incarcerated at New Jersey State Prison serving a life sentence. During his incarceration, plaintiff acquired various intellectual property assets, which he assigned to Advanced Data Solutions Corporation (ADS) in exchange for sole ownership of the corporation. Thereafter, on March 3, 2007, certain defendant DOC employees seized and retained plaintiff's personal property consisting of: 1) miscellaneous corporate paperwork pertaining to ADS, including the assignment agreements, corporate resolutions, stock certificates, shareholder ledgers, minutes of shareholder meetings, and tax information; 2) patent-prosecution documents; 3) an unfiled provisional patent application; 4) several floppy diskettes; and 5) various legal correspondence. Litigation ensued thereafter in federal and state court.

District Court Proceedings

On December 1, 2008, plaintiff filed an action in the United States District Court for the District of New Jersey on behalf of himself and ADS as its representative ad prosequendum against defendants in the instant matter alleging several federal claims, including a Fifth Amendment Takings Clause claim and various civil rights claims arising under 42 U.S.C.A. 1367, as well as an inverse condemnation claim under state law.

On June 15, 2009, the District Court issued a sua sponte order and written opinion dismissing plaintiff's Takings Clause claims without prejudice, and dismissing his state inverse condemnation claim without prejudice by declining to exercise pendent jurisdiction.2 Tormasi v. Hayman, No. 08-5886 (D.N.J. June 15, 2009) (slip op. at 19-20). Among other deficiencies, the District Court found the Takings Clause claim premature because plaintiff had not pursued the state post-taking compensation procedure and, therefore, also declined to exercise supplemental jurisdiction over plaintiff's inverse condemnation claim. Ibid.

On July 23, 2009, plaintiff filed a nearly identical amended complaint in the District Court, reasserting all of the claims set forth in his initial complaint, including the dismissed Takings Clause and inverse condemnation claims. However, in these pleadings, plaintiff also contended defendants' conduct violated his First Amendment right to free speech.

On March 14, 2011, the District Court issued an order and opinion granting defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss with prejudice the amended complaint for failure to state a claim for failure to cure the deficiencies in the original complaint, and again declined to exercise pendent jurisdiction over plaintiff's state claim. Tormasi v. Hayman, No. 08-5886 (D.N.J. Mar. 14, 2011) (slip op. at 17). On March 23, 2011, plaintiff appealed the District Court's dismissal of his amended complaint to the United States Court of Appeals for the Third Circuit.

On September 1, 2011, the Third Circuit affirmed the District Court's dismissal, holding that the confiscation of plaintiff's corporate paperwork did not violate his statutory or constitutional rights. The Third Circuit reasoned that plaintiff's conduct constituted operation of a business, and so fell within the DOC's regulation prohibiting an inmate from "commencing or operating a business or group for profit or commencing or operating a nonprofit enterprise without the approval of the Administrator." Tormasi v. Hayman, 443 F. App'x 742, 745 (3d Cir. 2011) (quoting N.J.A.C. 10A:4-4.1(a)(.705)). As plaintiff was operating a business for profit and "[b]ecause [plaintiff's] property was confiscated as contraband pursuant to New Jersey statute and regulation, he is not entitled to compensation pursuant to the Takings Clause of the Fifth Amendment." Id. at 746 (citing Savko v. Rollins, 749 F. Supp. 1403, 1412-14 (D. Md. 1990)). Additionally, the Third Circuit held that plaintiff "failed to state a claim for a deprivation of property without due process of law under the Fourteenth Amendment because an adequate post-deprivation remedy for the loss exists." Ibid. (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3203, 82 L. Ed. 2d 393, 406-07 (1984)). The record does not indicate whether plaintiff sought to appeal the Third Circuit's decision.

State Court Proceedings

On August 21, 2009, plaintiff also filed an inverse condemnation complaint in Mercer County Superior Court, alleging federal and state constitutional claims identical to the claims dismissed by the District Court. The court subsequently granted defendants' unopposed Rule 4:6-2(e) motion to dismiss the complaint with prejudice based on statute of limitations grounds, as plaintiff had failed to file opposition, despite being given the opportunity to do so following a docketing error.

Plaintiff appealed the dismissal, and on July 20, 2011, this court reversed and remanded the matter for consideration of defendant's motion on its merits. Tormasi v. Hayman, No. A-5739-09 (App. Div. July 20, 2011) (slip op. at 6-7). However, on November 1, 2011, in light of the Third Circuit's decision, the parties filed a consent order in which defendants withdrew their motion to dismiss on statute of limitations grounds, and defendants were given an extension of time to answer, move, or otherwise reply to plaintiff's state inverse condemnation claim.

Thereafter, on December 1, 2011, defendants filed another Rule 4:6-2(e) motion to dismiss plaintiff's complaint with prejudice, arguing that plaintiff's claim is barred by the doctrines of res judicata and collateral estoppel, and for failure to state a claim upon which relief can be granted. Neither party requested oral argument, but for reasons that are not clear from the record, the motion was not heard until three years later, when on February 20, 2014, the trial court granted the motion.

In its decision from the bench, the court reasoned that "the federal takings and due process claims were previously dismissed with prejudice in the district court and upheld on appeal," and so, "plaintiff is precluded by the doctrine of res judicata from now pursuing those claims in state court." The court noted that the June 15, 2009, District Court decision dismissed the complaint without prejudice, but that the March 14, 2011, District Court decision considering the same arguments dismissed the complaint with prejudice. The court also explained that there is a statutorily prescribed state remedy for the unauthorized deprivation of property by a government actor, and there can be no due process violation where there is a meaningful post-deprivation remedy for the loss; thus, the Takings Clause claim fails where plaintiff did not follow that process. In addressing the inverse condemnation claim, the court similarly found that, "because plaintiff has failed to seek compensation from the state[,] which is ordinarily a prerequisite to such a claim . . . [,] the claim must be dismissed as well the whole matter in its entirety." This appeal followed.


Our review of a trial court's dismissal of a complaint pursuant to Rule 4:6-2(e) is de novo. Flinn v. Amboy Nat. Bank, 436 N.J. Super. 274, 287 (App. Div. 2014). Our inquiry "'is limited to examining the legal sufficiency of the facts alleged on the face of the complaint.'" Green v. Morgan Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Accordingly, "[t]he essential test is simply 'whether a cause of action is suggested by the facts.'" Ibid. (citation omitted). Thus, we must "'search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Id. at 452 (quoting Printing Mart-Morristown, supra, 116 N.J. at 746).

Our review is "'one that is at once painstaking and undertaken with a generous and hospitable approach.'" Ibid.(quoting Printing Mart-Morristown, supra, 116 N.J. at 746). Nonetheless, dismissal is required "where the pleading does not establish a colorable claim and discovery would not develop one." State v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467 (App. Div. 2015) (citation omitted).

Applying these principles, we are convinced that the trial court properly dismissed the entirety of plaintiff's complaint with prejudice. Initially, we focus on the disposition of plaintiff's federal claims of First Amendment free speech, Fifth Amendment takings, and Fourteenth Amendment due process. The trial judge held that plaintiff cannot pursue his dismissed federal claims in state court based upon the doctrine of res judicata. Plaintiff contends that the federal courts rendered no substantive adjudication on the merits of his federal claims, as the District Court dismissed his complaint without prejudice. Plaintiff is incorrect. In the District Court's June 2009 order, plaintiff's federal claims were dismissed without prejudice by the Court sua sponte. However, in March 2011, ruling on defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court dismissed all of plaintiff's federal claims with prejudice. This judgment was affirmed by the Third Circuit on September 1, 2011.

Although the merits of an action are typically decided at a trial, "[u]nder the principles of res judicata[,] claims that are actually litigated and determined before trial also are barred from being relitigated." Velasquez v. Franz, 123 N.J. 498, 506 (1991) (citing Restatement (Second) of Judgments 27 comment d (1982)). The principle "contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation." Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960) (citation omitted). Application of res judicata "requires substantially similar or identical causes of action and issues, parties, and relief sought," as well as a final judgment. Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989) (citations omitted). "[A] motion to dismiss for failure to state a claim is an adjudication on the merits for res judicata purposes, unless the judge specifies that it is 'without prejudice.'" Velasquez, supra, 123 N.J. at 507 (citing Fed.R. Civ. P. 41(b)).3

Plaintiff raises the same federal claims that the Third Circuit dismissed with prejudice when it affirmed the District Court's dismissal of plaintiff's federal claims. The federal action is a final judgment; and hence, those claims are barred by res judicata.

We next address plaintiff's state inverse condemnation claim. Plaintiff contends that he was not compensated by the State of New Jersey for the fair value of his personal property that was confiscated by the DOC, as required by Article 1, Paragraph 20 of the New Jersey Constitution. Therefore, plaintiff asserts that under the holding in In re Jersey Central Power & Light Co., 166 N.J. Super. 540, 544 (App. Div. 1979), he has established the elements of an inverse condemnation claim. We disagree.

Our State Constitution's protection from government takings is coextensive with the protection under the Federal Constitution. Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 296 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). Thus, plaintiff's inverse condemnation claims should be decided on the same grounds as were the federal claims resolved in federal court. Although the federal court chose not to exercise pendent jurisdiction to decide the state claim, res judicata requires application of the Third Circuit's decision that plaintiff's property was rightfully taken under N.J.A.C. 10A:4-4.1 prohibiting inmates from operating businesses while incarcerated. Furthermore, as the federal court ruled, plaintiff has failed to seek compensation from the state in accordance with post-deprivation remedy for his loss as a prerequisite to this litigation. Accordingly, like the motion judge, we conclude that the state claim fails for the same reasons that the federal claims were dismissed with prejudice.

In addition, plaintiff argues that he sufficiently pled his inverse condemnation claim and properly asserted his Takings Clause claim in accordance with the entire controversy doctrine. He further contends that if the trial court's ruling is affirmed, this court should, in the interest of justice and judicial economy, confirm plaintiff's right and ability to pursue his Takings Clause claim in the District Court pursuant to federal law. Such arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


1 Investigator Harrison's first name is not set forth in the record.

2 The District Court permitted plaintiff's claim for denial of access to the courts to proceed as against defendant Wojciechowicz, only with respect to Wojciechowicz' alleged retention of diskettes related to plaintiff's collateral challenges to his conviction for receiving stolen goods. Tormasi v. Hayman, No. 08-5886 at *14-15.

3 The language of Fed. R. Civ. P. 41(b) has changed since the Velasquez court quoted the rule in its reasoning. However, the current text reflects the same operation: "Unless the [involuntary] dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits."

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