JAMAR DEMBY v. STATE OF NEW JERSEY

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2399-19

JAMAR DEMBY,

          Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

     Defendant-Respondent.
________________________

                   Submitted September 15, 2021 – Decided September 28, 2021

                   Before Judges Messano and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Docket No. L-1615-19.

                   Jamar Demby, appellant pro se.

                   Andrew J. Bruck, Acting Attorney General, attorney for
                   respondent (Donna Arons, Assistant Attorney General,
                   of counsel; Michael T. Moran, Deputy Attorney
                   General, on the brief).

PER CURIAM
      Plaintiff Jamar Demby appeals from the January 3, 2020 order, dismissing

his complaint with prejudice for failure to state a claim. We affirm.

      In lieu of restating the record, we incorporate by reference the facts set

forth in our unpublished opinion, State v. Demby, No. A-6039-05 (App. Div.

Apr. 4, 2008) (slip op. at 1-3), and only highlight the facts pertinent to this

appeal.

      Plaintiff was convicted of various crimes arising from two incidents that

occurred in broad daylight in July 2004. In the first incident, he entered a

pharmacy in Camden, demanded cigarettes, and when a salesclerk asked him for

money, plaintiff lifted his shirt and displayed what the clerk believed to be the

handle of a gun. Plaintiff then helped himself to cigarettes from behind the sales

counter. Two days later, he returned to the same pharmacy, but this time, he

went behind the sales counter. When the pharmacist said, "excuse me," to

plaintiff, he again lifted his shirt and displayed a gun.      The gun plaintiff

exhibited during these events was never recovered.

      During the 2006 trial, the salesclerk and another employee who witnessed

the first incident identified plaintiff as the perpetrator.    Additionally, the

pharmacist testified about the gun plaintiff displayed during the second incident.




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      The jury convicted plaintiff of disorderly persons theft,  N.J.S.A. 2C:20- -

3(a); first-degree robbery,  N.J.S.A. 2C:15-1(b); second-degree possession of a

weapon for unlawful purposes,  N.J.S.A. 2C:39-4(a); third-degree unlawful

possession of a weapon,  N.J.S.A. 2C:39-5(b); and second-degree certain persons

not to have weapons,  N.J.S.A. 2C:39-7(b)(1). He was sentenced to an eighteen-

year prison term for the robbery offense, subject to the eighty-five percent parole

disqualifier under the No Early Release Act,  N.J.S.A. 2C:43-7.2, and nine years

of parole ineligibility under the Graves Act,  N.J.S.A. 2C:43-6(c). Appropriate

fines and penalties, along with additional terms of incarceration for the

remaining charges, were imposed, and in 2008, we affirmed plaintiff's

conviction and sentence.

      On August 1, 2018, plaintiff filed a civil complaint against the State of

New Jersey. The State moved to dismiss the complaint under Rule 4:6-2(e),

asserting two grounds for dismissal: (1) plaintiff's claims were time-barred

under the New Jersey Tort Claims Act (TCA),  N.J.S.A. 59:1-1 to 12-3; and (2)

his complaint failed to state a claim upon which relief could be granted. The

motion judge dismissed the complaint with prejudice, triggering the instant

appeal.

      Plaintiff presents the following arguments for our consideration:


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            I. APPELLANT STATED A LEGITIMATE CLAIM
            FOR WHICH RELIEF COULD AND SHOULD HAVE
            BEEN GRANTED (RAISED BELOW).

            II. THE TRIAL JUDGE ABUSED HIS DISCRETION
            BY DISMISSING PLAINTIFF['S]/APPELLANT['S]
            COMPLAINT WITH PREJUDICE. (NOT RAISED
            BELOW).

We are not persuaded.

      Appellate courts review the grant of a motion to dismiss a complaint for

failure to state a cause of action de novo, applying the same standard under Rule

4:6-2(e) that governed the motion court. Dimitrakopoulos v. Borrus, Goldin,

Foley, Vignuolo, Hyman & Stahl, P.C.,  237 N.J. 91, 108 (2019). Such review

"is limited to examining the legal sufficiency of the facts alleged on the face of

the complaint," and, in determining whether dismissal under Rule 4:6-2(e) is

warranted, the court should not concern itself with a plaintiff's ability to prove

his or her allegations. Printing Mart-Morristown v. Sharp Elecs. Corp.,  116 N.J.
 739, 746 (1989).

      The TCA governs tort claims against the State. It declares that "the public

policy of this State [is] that public entities shall only be liable for their

negligence within the limitations of [the TCA]."  N.J.S.A. 59:1-2. Additionally,

the TCA "imposes strict requirements upon litigants seeking to file claims

against public entities." McDade v. Siazon,  208 N.J. 463, 468 (2011). For

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example,  N.J.S.A. 59:8-8(b) specifically provides: "[t]he claimant shall be

forever barred from recovering against a public entity or public employee if two

years have elapsed since the accrual of the claim." TCA defines accrual as "the

date on which the claim accrued and [it] shall not be affected by the notice

provisions contained herein."  N.J.S.A. 59:8-1. See also Russo Farms, Inc. v.

Vineland Bd. of Educ.,  144 N.J. 84, 98 (1996) (quoting Rosenau v. City of New

Brunswick,  51 N.J. 130, 137 (1968)) ("The traditional rule is that a cause of

action accrues on the date when 'the right to institute and maintain a suit'[] first

arises.").

      Here, plaintiff instituted suit against the State more than thirteen years

after his 2006 conviction, alleging the State elicited false testimony from the

pharmacist who testified against him at trial, and claiming this witness lied about

plaintiff's use of a firearm. Plaintiff further alleged the State's actions resulted

in his conviction and subsequent loss of liberty. Additionally, he asserted the

TCA's two-year statute of limitations was tolled under the "continuous tort

doctrine" because his injury was ongoing in that he suffered a "daily loss of

liberty" while in prison. Plaintiff sought damages from the State in the sum of

$35,000,000.




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      "The 'continuing tort doctrine,' also known as the 'continuing violation

doctrine,' provides that when an individual is subjected to a 'continual,

cumulative pattern of tortious conduct,' the statute of limitations period begins

only when the wrongful action ceases." Wreden v. Twp. of Lafayette,  436 N.J.

Super. 117, 125 (App. Div. 2014) (quoting Wilson v. Wal-Mart Stores,  158 N.J.
 263, 272 (1999)). When a court finds that a continuing tort has been committed,

"[i]t implicitly holds that the defendant is committing a new tort, including a

new breach of duty, each day, triggering a new statute of limitations." Russo

Farms, Inc.,  144 N.J. at 99. Accordingly, "[i]t is only when the new injury

results from a new breach of duty that a new cause of action accrues." Id. at

114. However, one "'wrongful act with consequential continuing damage is not

a continuing tort,' and does not lengthen the statute of limitations." Ibid.

      Guided by these standards, we are satisfied plaintiff's reliance on the

continuing tort doctrine is misplaced and that the TCA's two-year statute of

limitation bars his tort claims against the State. See  N.J.S.A. 59:8-8(b). That

is because plaintiff's complaint makes clear his injuries flowed from his 2006

trial and conviction. As the motion judge aptly observed, "[s]ince the March

2006 trial, plaintiff has not sustained any new injuries that would give rise to

the accrual of a new cause of action." The judge also correctly concluded, "[t]he


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sole fact that the plaintiff has been . . . in East Jersey State Prison after his

sentencing for his convictions does not trigger the continuing tort doctrine."

      Regarding Point II, we agree with plaintiff that ordinarily, motions to

dismiss are granted without prejudice. Smith v. SBC Communs., Inc.  178 N.J.
 265, 282 (2004). Moreover, it is well established that a trial court accepts the

factual allegations of a complaint as true, and "searches the complaint in dep th

and with liberality to ascertain whether the fundament of a cause of action may

be gleaned even from an obscure statement of claim . . . ." Printing Mart-

Morristown,  116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Memorial

Park,  43 N.J. Super. 244, 252 (App. Div. 1957)). When reviewing a trial court's

grant of a motion to dismiss under Rule 4:6-2(e), the test to determine the

adequacy of the pleading is whether the facts as presented in the complaint

suggest a cause of action. Printing Mart-Morristown,  116 N.J. at 746 (citing

Velantzas v. Colgate-Palmolive Co.,  109 N.J. 189, 192 (1988)).             Stated

differently, appellate courts assess only the legal sufficiency of the claim. "A

complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-

2(e) only if 'the factual allegations are palpably insufficient to support a claim

upon which relief can be granted.'" Frederick v. Smith,  416 N.J. Super. 594,

597 (App. Div. 2010) (quoting Rieder v. State Dep't of Transp., 221 N.J. Super.


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547, 552 (App. Div. 1987)). See also Sickles v. Cabot Corp.,  379 N.J. Super.
 100, 106 (App. Div. 2005).

      But when the complaint fails to set forth "[t]he traditional articulation" of

the elements of a cause of action, no additional facts could be pled, or fu rther

proceedings will amount to "a mere fishing expedition," dismissal with

prejudice is entirely appropriate. Nostrame v. Santiago,  213 N.J. 109, 128

(2013). Similarly, when a complaint is untimely, dismissal with prejudice is

warranted. See id. at 127 (quoting Printing Mart-Morristown,  116 N.J. at 771-

72) (dismissal may be with prejudice if there is an "impediment such as a statute

of limitations"). Here, considering our conclusion that plaintiff was not entitled

to the tolling of the time requirements set forth under  N.J.S.A. 59:8-8(b), and

because the TCA is "strictly construed," McDade,  208 N.J. at 474, dismissal of

plaintiff's complaint with prejudice was warranted.

       To the extent we have not addressed any remaining arguments raised by

plaintiff, they are without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




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