Other state courts have permitted a § 1983 action to be utilized to challenge conditions of confinement. E.g., Williams v. Davis, 386 So.2d 415 (Ala. 1980); Brown v.Pitchess, 13 Cal.3d 518, 531 P.2d 772, 119 Cal.Rptr. 204 (1975); Wesson v. Johnson, 195 Colo. 521, 579 P.2d 1165 (1978); Dickerson v. Warden, Marquette Prison, 99 Mich. App. 630, 298 N.W.2d 841 (1980); MacNeil v. Klein, 141 N.J. Super. 394, 358 A.2d 488 (1976); Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188, 424 N.Y.S.2d 168 (1979); Commonwealth ex rel. Saunders v. Creamer, 464 Pa. 2, 345 A.2d 702 (1975); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). In Beaver v. Chaffee, 2 Kan. App.2d 364, 579 P.2d 1217 (1978), the court recognized that habeas corpus was not the only means of testing conditions of confinement and sanctioned the use of declaratory judgment and injunctive relief.
The term “may” implies a permissive action, not a mandatory action. MacNeil v. Klein, 141 N.J.Super. 394, 403, 358 A. 2d 488 (App.Div.1976) (when Legislature uses the term “may” in a statute, as the word inherently implies, it is generally used in the permissive sense). Furthermore, “the word ‘may’ should be given the meaning which conforms to the legislative intent.”
This type of evidence would have been admissible even if the two cases had been severed for trial. Moreover, on the propriety of joinder, we explained R. 4:29-1(a) in MacNeil v. Klein, 141 N.J. Super. 394, 358 A.2d 488 (App.Div.), certif. denied, 72 N.J. 455, 371 A.2d 60 (1976): The aim of permissive joinder is to allow all parties to obtain the largest efficient unit of litigation.
"The aim of permissive joinder is to allow all parties to obtain the largest efficient unit of litigation." MacNeil v. Klein, 141 N.J. Super. 394, 408 (App.Div. 1976), certif. den. 72 N.J. 455 (1976).
Fauver and Call contend that they had no affirmative duty to ensure that Ryan's rights were not violated by others under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), as explained by this court in Chinchello. They also contend that they have no direct authority over county officials, and that county officials alone are responsible for the care, custody and control of inmates in county jails. See, e.g., N.J.Stat.Ann. §§ 30:1-16,:8-17,:8-19,:8-57 (West 1981); MacNeil v. Klein, 141 N.J. Super. 394, 358 A.2d 488 (App. Div.) (prison administrators, not county officials, were appropriate codefendants in plaintiffs' civil rights action), cert. denied, 72 N.J. 455, 371 A.2d 60 (1976). In making these arguments, Fauver and Call misread the district court's opinion and ignore the import of Executive Order No. 106, signed by then Governor Byrne in June of 1981. That order acknowledges that penal and correctional institutions in New Jersey are "seriously overcrowded" and that "there is a need to efficiently allocate inmates of state and county penal and correctional institutions to those institutions having available space in order to alleviate overcrowding."
"Except as otherwise in this chapter provided the sheriff of every county shall have the care, custody and control of the county jails or jails and all prisoners therein, and shall be responsible for the conduct of any keeper appointed by him." Moreover, Plaintiff relies upon MacNeil v. Klein, 141 N.J. Super. 394, 403 (App. Div. 1976), which held that "the care, operation and management of county jails are by law the responsibility of county sheriffs." Plaintiff asserts that Middlesex County Sheriff's Office should be a named defendant in the above-captioned matter because of its responsibility for the employees of each particular county jail.
N.J. R. 4:29-1(a). See MacNeil v. Klein, 358 A.2d 488, 495-96 (N.J. Super. Ct. App. Div. 1976). Belmont reasonably argues that the claims against Commerce and the Insurers are not egregiously misjoined because the parking space and insurance claims both arise from the construction and management of the Belmont condominium building and will require proof of common facts and the testimony of common witnesses. Reply to Mot. to Remand 16-17.
Defendant's argument relies heavily on MacNeil v. Klein, a 1976 decision of the New Jersey Appellate Division holding that the Commissioner of the New Jersey Department of Institutions and Agencies (NJDOC's predecessor) could not be held liable for deprivation of inmate rights at a county correctional facility because he held only "permissive" responsibilities with respect thereto. See 358 A.2d 488, 492-93 (N.J.Super.Ct. App. Div. 1976). Defendant fails to recognize, however, that significant changes have been made to the Commissioner's authority in the years since MacNeil, not the least of which being the creation of the NJDOC in 1976.
Such a party is one who "has an interest inevitably involved in the subject matter before the court and a judgment cannot justly be made between the litigants without either adjudging or necessarily affecting the absentee's interest." Allen B. DuMont Laboratories, Inc. v.Marcalus Mfg. Co., 30 N.J. 290, 298 (1959); see MacNeil v.Ann Klein, 141 N.J. Super. 394, 406 (App.Div. 1976); Jenningsv. M M Transp. Co., 104 N.J. Super. 265, 272 (Ch.Div. 1969).
[ Id. at 24-25.] Accord Bell v. Western Employer's Ins. Co., 173 N.J. Super. 60, 65 (App.Div. 1980) (in dictum, noting that "may" and "shall" "may be deemed interchangeable when necessary to execute the clear intent of the Legislature"); MacNeil v. Ann Klein, 141 N.J. Super. 394, 402 (App.Div. 1976) (in dictum, "the word `may' should be given the meaning which conforms to the legislative intent"). Thus, plaintiffs' reliance on any notion of a "plain meaning" rule in this situation must fail.