BRIAN E. KILLION VS. NEW JERSEY STATE PRISON (DC-003194-19 AND DC-003197-19, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 9, 2021
• Docket: A-3741-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3741-19

BRIAN E. KILLION,

Plaintiff-Appellant,

v.

NEW JERSEY STATE PRISON and KEVIN GRIER,

Defendants-Respondents,

and

STEVEN JOHNSON and ALAN RAZZOLI,

Defendants. ____________________________

Submitted May 12, 2021 – Decided June 9, 2021

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. DC-003194-19 and DC-003197-19.

Brian E. Killion, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondents (Jane C. Schuster, Assistant Attorney General, of counsel; Kevin J. Dronson, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Brian E. Killion, an inmate of the State prison in Trenton, appeals

from a January 17, 2020 order denying his motion to reconsider the October 4,

2019 order dismissing his Special Civil Part complaints with prejudice. Judge

Anklowitz had granted defendant Department of Corrections' motion to dismiss

plaintiff's complaints for recovery of his lost property because the court lacked

jurisdiction over plaintiff's State administrative claims. In the order, the judge

explained plaintiff needed to pursue his lost property claims through the DOC's

inmate remedy program, N.J.A.C. 10A:1-4.1 to -4.9, and, if dissatisfied there,

in an appeal to this court. See Barnes v. Sherrer, 401 N.J. Super. 172, 177 (App.

Div. 2008).

Plaintiff moved for reconsideration as if within time on December 26,

2019. He did not contest the court's finding as to jurisdiction. Instead, he argued

the DOC's motion was filed after default should have been entered per Rule 6:6-

2, and thus was "invalid" and should not have been considered by the court.

Judge Anklowitz denied the motion, finding it out of time pursuant to Rule 4:49-

2, and explaining that Rule 1:3-4(c), expressly prohibits the court from relaxing

A-3741-19 2 the twenty-day time period for filing a motion for reconsideration. See Murray

v. Comcast Corp., 457 N.J. Super. 464, 469-70 (App. Div. 2019).

Plaintiff appeals, reprising the argument he made to the trial court that

because the DOC "failed to apply for vacation of default judgments because of

the respondents' failure to answer complaints," the DOC's motion to dismiss

should have been barred by the court and not granted. The DOC counters that

the trial court correctly determined it lacked jurisdiction to consider plaintiff's

untimely motion for reconsideration. See id. at 471 (holding the trial court does

not have subject matter jurisdiction to consider a motion for reconsideration of

a final judgment filed outside the twenty-day period allowed by Rule 4:49-2).

The DOC further argues, with specific reference to the court's docket

entries, that plaintiff is simply incorrect about when the DOC was served with

his complaint and thus when it was required to respond. The DOC asserts, again

with specific reference to the court's docket entries, that its motion to dismiss

was timely filed. It also argues the court was correct to dismiss plaintiff's

complaints on the merits as both Rule 2:2-3(a)(2) and Prado v. State, 186 N.J.

413, 422 (2006), make clear the Appellate Division has exclusive jurisdiction

"to review final decisions or actions of any state administrative agency or

officer."

A-3741-19 3 Tacitly acknowledging the validity of the DOC's arguments as to the

timeliness of its motion in the trial court and the court's lack of jurisdiction to

hear plaintiff's untimely motion for reconsideration, plaintiff changes tack in his

reply brief. He contends that as "defendants failed to finalize their decision to

the claims of loss with written notice" to him pursuant to N.J.A.C. 10A:2-6.3(b)

and 10A:2-6.1(f), he "had no answer on which to base an appeal" and thus his

"only course of action was to file his tort claims."

We reject plaintiff's argument. The law is well settled that this court's

jurisdiction extends to State agency inaction. See Twp. of Neptune v. Dep't of

Envtl. Prot., 425 N.J. Super. 422, 432 (App. Div. 2012) (noting "[t]he Appellate

Division's jurisdiction under [Rule 2:2-3(a)(2)] extends to State agency action

and inaction"); Pressler & Verniero, Current N.J. Court Rules, cmt. 3.1 on R.

2:2-3 (2021). Plaintiff is incorrect the DOC's alleged inaction left him with no

choice but to file a tort claims notice. If the DOC failed to act on plaintiff's lost

property claims as he contends, his recourse was to this court. See Hosp. Ctr. at

Orange v. Guhl, 331 N.J. Super. 322, 330 (App. Div. 2000) (explaining "the

appropriate procedural route for a party claiming to be adversely affected by the

inaction of a state administrative agency is to file a notice of appeal and motion

for summary disposition").

A-3741-19 4 Because it is undisputed plaintiff's motion for reconsideration was

untimely and the motion dismissing his complaint well supported, we affirm.

Affirmed.

A-3741-19 5