Opinion
DOCKET NO. A-1595-13T4
03-09-2015
MICHAEL E. HAYMES, Plaintiff-Appellant, v. SERGEANT TIMMERMAN, S.C.O SMITH, Defendants-Respondents.
Michael E. Haymes, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kevin J. Fleming, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0910-13. Michael E. Haymes, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kevin J. Fleming, Deputy Attorney General, on the brief). PER CURIAM
Appellant Michael E. Haymes, who was an inmate at South Woods State Prison, appeals from an order of the Law Division denying his motion to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9. We affirm.
N.J.S.A. 59:8-8 requires that a person seeking to sue a public entity for alleged personal injury file a notice of the claim with the public entity "not later than the 90th day after accrual of the cause of action." N.J.S.A. 59:8-9 states:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter . . . .
[(Emphasis added).]
In his pro se submissions before us, appellant contends that on October 12, 2012, while he was confined in the "suicide watch room" in the prison, an unidentified corrections officer kicked him hard in the ankle. He claims he was injured but did not know the extent of the injury until several days later when he could not walk. He submitted a written request to prison officials for medical treatment on October 19, 2012, and first received medical treatment on October 31, 2012. Without specifying the date, appellant also contends that, in October 2012, he submitted an "Inmate Remedy System Form" pursuant to N.J.A.C. 10A:1-4 requesting an internal affairs investigation of the incident. He states he was transferred to Northern State Prison the day after he submitted the inmate remedy form.
According to appellant, he mailed a motion to the court on January 13, 2013, seeking leave to file as an indigent and indicating his "Intent to File Civil Lawsuit." The motion was received by the court on January 22, 2013, and the court clerk responded to appellant by form letter dated January 25, 2013: "If this is a motion for a late tort claim, please use the motion package."
Appellant did not pursue the motion again until almost nine months later. On October 14, 2013, he mailed a pro se motion for leave to file a late notice of tort claim. The motion was received and filed in the court on October 18, 2013. It consisted of a notice of motion, appellant's certification in support of the motion, a two-page legal memorandum, a form of order, and a certification of service. No exhibits were attached to the motion.
The Law Division denied the motion by order filed on November 12, 2013. In a written statement of reasons, the court found that the incident that gave rise to the tort claim occurred on October 12, 2012, which was more than a year earlier, and so, the court was not authorized under N.J.S.A. 59:8-9 to grant the extension appellant sought. In addition, the court found that the moving papers "are otherwise insufficient" to warrant an extension of time to file a notice of tort claim. Appellant filed a timely notice of appeal to this court.
He contends the Law Division erred because: (1) his original motion to the court filed in January 2013 was within ninety days of the date his claim accrued, (2) his October 2013 motion seeking an extension was filed within one year of the incident, (3) his request for medical care and his inmate remedy form provided notice to prison officials that he alleged a tort committed against him by corrections officers, and (4) extraordinary circumstances prevented him from filing a formal notice of tort claim within the ninety-day statutory deadline. Respondents argue that documents appellant has included in his appendix on appeal should not be considered because they were not submitted to the Law Division with any motion papers. Respondents also argue that appellant's arguments for an extension are without merit.
Initially, we agree with respondents that evidentiary material that was not submitted to the Law Division is not part of the record on appeal and should not be considered by us. Harris v. Middlesex Cnty. Coll., 353 N.J. Super. 31, 48 (App. Div. 2002). Rule 2:5-4(a) specifies that the record on appeal "shall consist of all papers on file in the court or courts or agencies below . . . ." Appellant did not submit to the Law Division his request for medical treatment, the Inmate Remedy Form, or his January 2013 motion, but he now argues that those documents show he substantially complied with the notice provisions of the statute. The Law Division did not err in denying the motion on the basis of the motion and accompanying papers that appellant actually filed with the court.
Even if appellant's additional exhibits are considered, he has not shown error in the Law Division's ruling.
Typically, the claim accrues on the date that the alleged wrongful conduct occurred. Beauchamp v. Amedio, 164 N.J. 111, 116-17 (2000). Here, the alleged tort occurred on October 12, 2012. The ninetieth day after that was January 10, 2013. Appellant did not file a notice of tort claim by that time.
We reject appellant's arguments that the accrual date was actually October 31, 2012, when he first received medical treatment, or October 19, 2012, when he realized the injury was serious and requested medical treatment. Recognition of the extent of the injury is not the date that a tort claim accrues. If the claimant believes, as appellant did, that an alleged tort was committed at an earlier date and that he was injured, the fact that he did not know how serious the injury was does not toll the date of accrual. See id. at 121-22.
Appellant also contends that the ninety-day time limitation was tolled by the requirement contained in N.J.A.C. 10A:1-4.4(d) that he exhaust the inmate remedy system before he can file "any legal action." He contends he filed an inmate remedy form in October 2012 and his legal claim did not accrue until the administrative process was exhausted. The cited regulation, however, does not preclude a notice of tort claim from being filed while administrative remedies are pursued. A notice of tort claim is not a legal action.
In addition, we find no merit in appellant's contention that the inmate remedy form and his request for medical treatment were in themselves sufficient to give notice to the prison that he had a claim. Neither document provided the information that is required in a notice of tort claim under N.J.S.A. 59:8-4.
Appellant claims that his transfer to another prison and delays in receiving and sending mail from prison excuse the passage of time. In D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J. 130, 148 (2013), the Supreme Court explained that the Legislature's amendment of the statute in 1994 to require a showing of extraordinary circumstances before the ninety-day deadline can be extended was "intended to 'raise the bar for the filing of late notice[,]'" (quoting Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 428 (2011)). The Court directed trial courts to adhere to this "more exacting standard" in considering applications under N.J.S.A. 59:8-9 for an extension of time to file the notice. D.D., supra, 213 N.J. at 148.
Here, neither appellant's motion as submitted to the Law Division nor its expansion in his appellate brief before us shows extraordinary circumstances for stretching the time to the very end of the one-year maximum limitation. Appellant has not shown "sufficient reasons" for failing to file a notice within the statutory time period. The Law Division did not abuse its discretion in denying his motion.
Appellant signed his motion papers on October 8, 2013, but the motion was not mailed from the prison until October 14, 2013, and it was not filed in the Law Division until October 18, 2013. Only the first of these dates was within one year of the accrual of the claim, October 12, 2012. Since we find no error in the Law Division's order of denial, we need not decide what date should be controlling in determining the one-year limitation period for granting an extension.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION