UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RANDY BROWN,

Plaintiff,

v.

CITY OF ESSEX COUNTY STATE OF NEW

JERSEY, NEW JERSEY PROBATION

DIVISION - CHRISTOPHER STANECKI,

ESSEX COUNTY SHERIFF’S

DEPARTMENT - ARMANDO FONTOURA,

Defendants.

Civil Action No. 2:10-03980

OPINION

HON. WILLIAM J. MARTINI

WILLIAM J. MARTINI, U.S.D.J.:

This matter comes before the Court on Defendants County of Essex (improperly

pled as "City of Essex County State of New Jersey"), Essex County Sheriff's Office and

Armando B. Fontoura's motion to dismiss all negligence claims pursuant to Federal Rule

of Civil Procedure 12(b)(6). There was no oral argument. Fed. R. Civ. P. 78. For the

reasons stated below, Defendants’ motion is GRANTED and Plaintiff’s common law tort

claims as to all Defendants are DISMISSED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of Plaintiff Randy Brown’s bail hearing in Manhattan Criminal

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Court on September 24, 2009. (Compl. ¶ 6.) At that hearing, Plaintiff alleges he was

denied bail due to a separate, outstanding warrant from Essex County, New Jersey

(“Essex County Warrant”) that turned up when his name was run through the system.

(Id.) Plaintiff claims that the Essex County Warrant is for a different person, possibly

named Dwayne Brown, and he has tried to address the mistake with both Essex County

and the Manhattan Criminal Court. (Compl. ¶ 21.) The Manhattan Criminal Court seems

to have agreed with Plaintiff and “dismissed” this outstanding warrant on October 1 or

16, 2009. (Compl. ¶¶ 11, 30.) However, Plaintiff claims that he had already incurred

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damages, since he had been remanded and not granted bail, and since he was classified by

the Department of Corrections as a “high” offender based on the presence of the Essex

County Warrant. (Compl. ¶ 12.) He was moved to “low” classification on January 21,

2010. (Compl. ¶ 27.) Plaintiff's multiple filings seem to indicate that he served a prison

sentence, or was otherwise detained, through April or May of 2010 as a result of the

charges in Manhattan Criminal Court. While the Manhattan Criminal Court “dismissed”

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the Essex County Warrant, Plaintiff alleges that he was unable to fully clear it off his

 While the Plaintiff describes the action by the Manhattan Criminal Court as a 1

“dismissal” of the warrant, the Court interprets this to mean that the Manhattan Criminal Court

took the outstanding warrant off of his record (either generally, or with the Department of

Corrections). Plaintiff is not contending that the Essex County Warrant itself is invalid, he is

only asserting that the person named in the warrant is a different individual.

 There is little, if any, information provided regarding the actual charges against Plaintiff 2

in Manhattan Criminal Court, but these charges are not at issue. Plaintiff is only claiming that

the presence of an outstanding warrant from New Jersey on his record affected his bail amount

and classification while imprisoned, not that the warrant affected any sentence he may have

received in Manhattan Criminal Court.

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record without the help of Essex County. Plaintiff also alleges that his Department of

Corrections records the birth date listed on the Essex County Warrant and not his actual

birth date. (Compl. ¶ 24.) Essentially, Plaintiff is claiming that Defendants did not do

enough to help clear up the mix-up regarding the outstanding warrant, despite his

repeated requests.

As a result of the events stated above, Plaintiff filed a complaint in the Superior

Court of New Jersey alleging a variety of claims against Defendants. The case was then

removed on August 4, 2010. Plaintiff’s asserted claims are somewhat difficult to

decipher, but appear to include the following: (1) negligence, (2) defamation or slander,

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(3) false imprisonment, and (4) claims for violation of his Fourth, Fifth, Eighth, and

Fourteenth Amendment rights. Defendants County of Essex (improperly pled as "City of

Essex County State of New Jersey"), Essex County Sheriff's Office and Armando B.

Fontoura now bring a motion to dismiss all negligence claims.

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 In determining what constitute Plaintiff’s asserted claims, the Court refers first to the 3

numbered assertions provided on Plaintiff’s “Form A,” included in the Complaint, and then to

the claims asserted throughout the Complaint itself, particularly the references to constitutional

claims in Paragraph 53 of the Complaint. 

 While the Plaintiff listed “slander” as a separate claim on the “Form A” that was 4

initially submitted in state court, the Court will refer to defamation and slander as one claim. 

Since slander is a specific form of defamation, there is no need to refer to it as a separate cause of

action.

 While the Superior Court of New Jersey, Essex Vicinage, Probation Division 5

(“Probation Division”) did not join in this motion, as they were initially unaware of the removal

and are currently requesting an extension of time to answer, the request in this motion equally

applies to the Probation Division. Therefore, unless otherwise clarified, the Court will use the

term “Defendants” to refer to all the defendants, not just those that filed the motion at hand.

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II. DISCUSSION

A. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,

in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.

The moving party bears the burden of showing that no claim has been stated, Hedges v.

United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if,

accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead

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“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); see also Umland v. PLANCO Fin. Serv., Inc., 542

F.3d 59, 64 (3d Cir. 2008). The factual allegations must be sufficient to raise a plaintiff’s

right to relief above a speculative level, see Twombly, 550 U.S. at 570, such that the court

may “draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at

556). Furthermore, the Plaintiff must “provide the ‘grounds’ of his ‘entitlement to

relief,’” which “requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. While “[t]he

plausibility standard is not akin to a ‘probability requirement’ . . . it asks for more than a

sheer possibility....” Iqbal, 129 S.Ct. at 1949 (2009).

 This assumption of truth is inapplicable, however, to legal conclusions couched as

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factual allegations or to “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

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B. New Jersey Tort Claims Act

Under the New Jersey Tort Claims Act (“NJTCA”), a party must file a notice of

claim, within ninety days of when the claim accrues, before asserting a tort claim against

a public entity or public employee. N.J. Stat. Ann. § 59:8-8. If no notice is filed, the

party is forever barred from recovery. Id. Since all of the defendants in this case are

either public entities or public employees, these NJTCA notice requirements apply as to

all Defendants. Plaintiff has not filed any such tort claim notice with any of the

defendants.

A court may, in its discretion, allow a plaintiff to file a late notice of claim if it

finds that “the public entity or the public employee has not been substantially prejudiced”

by the delay, and that there were “extraordinary circumstances” that led to the failure to

file within the period of time prescribed. N.J. Stat. Ann. 59:8–9. Here, Plaintiff’s claim

accrued, at the latest, by the time he was released from prison in April or May 2010.

There do not appear to be any “extraordinary circumstances” that prohibited him from

filing a notice of claim by August 2010. Plaintiff points to his inability to investigate

while he was in jail as justification, but even assuming that his claim did not accrue until

his release, he was still required to file a notice of claim by August 2010. Since

Defendants were not provided with any notice, and since Plaintiff has failed show

extraordinary circumstances, this Court will not allow a late notice filing.

Since Plaintiff failed to comply with the NJTCA notice requirement, all tort claims

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against Defendants are barred. While the motion to dismiss refers only to Plaintiff’s

negligence claim, Plaintiff appears to have asserted additional tort claims for false

imprisonment and defamation or slander. These common law tort claims are also under

the purview of the NJTCA, and are also barred due to Plaintiff’s failure to comply with

the notice requirement. See Gibson v. Inacio, No. 09-6356, 2010 U.S. Dist. LEXIS

106878, at *26 (D.N.J. Oct. 5, 2010) (barring a false imprisonment claim where no notice

was filed); Van v. Borough of North Haledon, No. 2009 U.S. Dist. LEXIS 52221, at *37

(D.N.J. June 17, 2009) (holding that the NJTCA’s notice requirement does apply to

intentional torts, including defamation). The notice of claim provisions of the NJTCA do

not apply to Plaintiff’s federal claims brought under 42 U.S.C. § 1983 for violations of

the Constitution. See Garlanger v. Verbeke, 223 F. Supp. 2d 596, 601 n.3 (D.N.J. 2002)

(“[t]he notice of claim provisions of the TCA do not apply to federal civil rights claims

brought under 42 U.S.C. § 1983”). Therefore, Plaintiff's negligence, defamation or

slander, and false imprisonment claims are dismissed as to all Defendants, while

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Plaintiff’s claims under the Fourth, Fifth, Eighth and Fourteenth Amendments remain as

to all Defendants.

 Put another way, all of Plaintiff’s common law tort claims are dismissed. This includes 7

any additional common law tort claims made by Plaintiff in the Complaint that this Court failed

to interpret as separate claims. This does not include any claims of constitutional violations. 

Additionally, since the Probation Division is also a public entity, and since Plaintiff has not

claimed to have provided them with the required notice, the claims are dismissed as to the

Probation Division as well as to the moving Defendants.

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III. CONCLUSION

For the reasons stated above, Defendants’ motion is GRANTED, and Plaintiff’s

common law tort claims are DISMISSED as to all Defendants. An Order accompanies

this Opinion.

/s/ William J, Martini

William J. Martini, U.S.D.J.

Date: December 9, 2010

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