Friday, May 23rd, 2014
Judge Millenky: El Aemer: uhh first were going to deal with El Mujaddid v. City of Vineland, it’s docket L4550-13
DAG Kelly: Your honor is that both Matters, I think uh, Mr. Baker and I were representing different parties,
Judge Millenky: This is the motion for reconsideration, and uhh please gentlemen be seated and let me just take appearances ad we’ll just go with plaintiff first, El Mujaddid: pro se litigant el Mujaddid present,
Mr. Baker: it’s just hard for me to do that so reflexive Theodore E. Baker. Cumberland County Counsel,
Judge Millenky: This is Mr. Mujaddid’s Motion For Reconsideration, and this court entered an order on April 30th, 2014, that denied the plaintiff the opportunity to file a late notice of tort claim, I’ll note that in connection with that there are a number of constitutional claims that plaintiff had made in connection with this matter, and they remain in place, the court i think noted the last time we were present, and notes again that, as to constitutional claims the tort claim notice requirement does not apply and so those claims remain viable, so this just pertains to the non constitutional claims and the standard on reconsideration is one that allows the court to consider, the following, that the litigant must demonstrate that the decision was arbitrary, capricious or unreasonable, that is to say that it palpably incorrect or based on an irrational basis and the court did not consider or failed to consider some relevant fact and our courts have cautioned umm that reconsideration is not to serve as a vehicle to introduce new evidence into, in order to cure an insufficiency and I would summarize it by suggesting you that, in substance if the court is missing something in substance umm, the court ought to revisit the issue, those standards that outlined, are the standards that I outlined diatria v diatria so with that in mind Mr. Mujaddid, what is it that you would say the court failed to consider,
El Mujaddid: Well I filed a tort claim on or around March 2013, uh…the,..the defense argues that they forwarded me a tort claim form from the county in June, but i filed a tort claim with the state in March, which was three or four months before the defense sent me that form, so that’s one issue, and in connection with that
Judge Millenky: I’m not sure, I follow, El Mujaddid: Well, Judge: you sent a notice of tort claim to the State of New Jersey
El Mujaddid: Well, you may be confused, but it’s my understanding the county of Cumberland is representing the prosecutorial defendants, is that correct? Judge: Counsel? Baker: Well, uhh, that’s a Broad category that the plaintiff is shooting at, when he says the prosecuting defendants,
El Mujaddid: Well to be specific defendant Wehling, defendant McRae, defendant Flynn these are County Prosecutors and this issue is regarding their criminal business activity, which to my understanding is activity significant to state tort claims or tort claims to be filed with the state versus with the County because the defendants would not have been acting on the county behalf with these issues they were acting under their state capacity, umm in retrospect to state v. Wright, where it specified that county prosecutors in their criminal business act on the capacity of the state, so i filed a tort claim,
Judge Millenky: Sir can you show me that actual tort claim notice,
El Mujaddid: i don’t have actually have the notice, but i do have the receipt from the State, Judge: can you show me that please you can just walk up that’s fine,………have you seen this??
Baker: I have not your honor, I don’t know that, until i saw that Mr.. the plaintiff’s reply brief, he alludes to this in his brief, but I’ve never seen such a thing..no, no i have never seen this correspondence, I, I will concede your honor, there’s allot of paper, but this one, I think, might have jumped out at me a little bit
El Mujaddid: I don’t have an actual copy of the actual notice with me right now, but I can obtain it, so my, my, arg, my point is, that I filed a notice with the State prior to the notice that was sent to me from the county in regard to the issues that pertain to the State with respect to the prosecutor defendants, to my understanding they were acting in that capacity, versus there county capacity,
Judge Millenky: Mr. Mujaddid, you didn’t bring this to the Court’s attention, the last time we were here,
El Mujaddid: well i did.. Judge: at least I don’t recall it, El Mujaddid: well I did file a copy, of that document with the notice, I mean, excuse the motion for permission to file a tort claim, there was a copy filed, I did serve a copy on the defendants. Judge: so you say you served that on Vineland,
El Mujaddid: I served that on Cumberland, I served a copy of that letter prior more than once actually, umm in regards to this issue,
Judge Millenky: so your position is right now is that you filed a notice of tort claim pertaining to certain employees of Cumberland County prosecutor’s office, and you filed that notice of claim with state of new jersey,
El Mujaddid: Yes
Judge Millenky: and according to that document you just sent to me it was filed on March 18th, and the notice that you received back from the State, and I’m just looking at what you showed me, says that your claim is late, its more than 90 days after it should of been filed and that it advises you therefore that you may make an application to the court for permission to file a late notice of claim and did you do that?
El Mujaddid: well the motion that i filed with this court was the motion, I, that’s where i got the instruction to file that motion was from this letter from the state, that’s why i filed the motion
Judge: that was back in 2013
El Mujaddid: yeah, well at that time i was still being prosecuted so i never filed it at that time but the prosecution didn’t end until June of 2013, contrary to what is prescribed in counsels recent correspondence they argued it was resolved in 2012, December 2013, but it was resolved in June 2013, so I filed, I didn’t know all of my causes of action number one, but i had an idea of some so i did file a notice, but i still don’t know all of the causes of action because I,
Judge Millenky: Well you don’t have to know all the causes of action, what you have to do is know that you have a claim and file the claim, and so for example and here’s what i would suggest to you, is a concern of the court Mr. Mujaddid, that you allege for example some very very direct claims, there are claims that you had handcuffs placed upon you that were too tight, that they created neuropathy that they created other delirious effects on your body, and you make similar claims of some physical miss treatment so you clearly knew of these prior to the end of your prosecution, and there is nothing that would suggest that an ongoing prosecution tolls the filing requirements with respect to a tort claim,
El Mujaddid: well I’m also bringing a common law action for malicious prosecution, im not just bringing a constitutional malicious prosecution claim, and
Judge Millenky: But make, But the constitutional claims that you make are not my concern in connection with this motion,
El Mujaddid: I understand that,
Judge: those are not affected by the tort claims act,
El Mujaddid: well, my point with the common law malicious prosecution claim, is that the malicious prosecution claims don’t start until its dismissed from the initial prosecution, so that would mean that the malicious prosecution claim under common law would start in June 2013, when I had already filed a tort in March, even though the matter wasn’t dismissed, I still felt that it was a malicious prosecution, that, that’s my point about that, but, I’m not saying that the ongoing prosecution should toll it, what I’m saying is that, we’re here because of discovery, I initiated this action in lieu for a writ, to obtain the missing discovery materials, one of the reasons I wasn’t able to file that claim earlier was because I could not identify, the specific persons that were involved with the significantly tight handcuffs etc, so i got that information now and i did file a claim when i got that information but i had no ability to identify them because the defendants would not turn over the discovery materials
Judge Millenky: okay, here’s what I’m goanna do, you presented a document that’s new today it’s unfair to Cumberland county to compel them to respond to a document that’s not previously presented, and also to the extent that there appears to be very very directly some sort of other notice provide in this case that dates back to march 18th of 2013, there may be some different arguments that the defense would construct what I’m goanna do is continue this for two weeks, umm Mr. Mujaddid, umm you don’t have that notice with you?,
El Mujaddid: No, the actual notice, that was filed, I don’t have that with me at this moment, but this is the copy that was filed in February of that particular doc, I did serve a copy of the document on the defendants and the court, umm, you know it’s the same document but this is where it was received, umm so it’s not that I didn’t serve, i don’t know if, you know if he went through the papers and didn’t see it, I did provide a copy of that much earlier than today, or with the recent submission,
Judge Millenky: Mr. Young did you get this? or Counsel did you get this?
Baker: uh well, is that the same document were looking at the March 18th, notice uhh, uhh from the State with respect his filing of the?
Judge Millenky: This appears to be a May 24th, 2013 notice,
Mr. Baker: I cannot recollect, because i hadn’t seen it here yet today, your honor, so i can’t say that one way or the other, uhh it’s from, who? Well this is the one that i saw previously,
El Mujaddid: yeah my point is that i filed it in February, a copy of it was served on each defendant, that’s my point, i don’t, i don’t know if you looked through the papers and didn’t see or not, but a copy was definitely filed,
Mr. Baker: my only representation is that, i do not recollect having seen this document before today, i don’t have perfect recall, and it’s a bit of paper that’s uh, has been processed, so, uh, but, i, i will, i think it’s important perhaps to comment about the tort claim act distinction that he raises under state v Wright because of the dichotomy, between the prosecutors administrative and prosecutorial functions and the states obligation to defend, as oppose to the county, that as your honor,….. it’s a tug of war, so if we don’t get this, then, at least i would like to see the body of the tort claim notice, to see what he alleges in there and as to whom,
Judge: Fair enough,
Mr. Baker: and in what capacity there acting because the implications are a little, finer than I, I thought, Judge: I understand its fair and reasonable that there be a complete record for purposes of all parties, Mr. Mujaddid here’s what I’m goanna ask you to do, file, excuse me, let’s not call it, umm, I want you to send to counsel a copy of all of the claims that you filed with the state, that appear to be memorialized in your correspondence that you received back from the state and Mr. Baker, I’m goanna ask Mr. Mujaddid to get that to you, today’s Friday Mr. Mujaddid can you do that by Wednesday,
El Mujaddid: yeah, Judge: okay and I’m goanna ask you to send a copy of that correspondence to me, and then Mr. Baker if there’s any further response that you want to make and then I’ll just here this,
Mr. Baker: yea, once i see it, then we’ll take a look, I don’t know where it leads us in terms of other briefing, Judge: would you be,…I’m just, just..goanna reschedule this too, I have this feeling that with memorial day in there June 6th, is not goanna practical, is it?, Baker: umm, i have, a recollection, of not aware, but that i do have something on June 6th, i just don’t, i think i have an appearance at that time, as well your honor, but..
Judge Millenky: Mr. Mujaddid, you’ll get this out by Wednesday and then Mr. Baker, I’m goanna make this returnable, this motion for reconsideration, postpone it to June 20th, umm anything that you have in response I’m goanna ask that you get to the court by Friday June 6th and Mr. Mujaddid if you have anything by Friday June 13th in response to what Mr. Baker says, then I’ll hear it on the 20th, okay,
El Mujaddid: uh just for the record, the other i got a call from the court, in regards to possible missing documents, i believe, I filed everything that was filed in Trenton, but i was um, informed that there was a motion for an extension on discovery filed uh, by the defense, i didn’t receive a copy, so i was kind of wondering, uhh
Mt. Baker: uh, Your honor he raises a legitimate issue, which i think i can help the court and the plaintiff with, I spoke with your law clerk and we actually looked at the docket and the motion to extend discovery was mischaracterized but in the docket, it does indicate that the motion to dismiss was filed which is described on the docket so that its, it’s clear what was filed but they miss designated it, on the docket entry,
Judge Millenky: Mr. Mujaddid
Mr. Baker: so there is no such motion because we haven’t even gotten to discovery yet, Judge: yeah, there’s a motion to dismiss, that’s returnable on June 6th,
Mr. Baker: yes and, he, he’s received that and he has actually replied and i have it here….
Judge Millenky: Mr. Mujaddid you’ve got that you don’t have any doubt about that El Mujaddid: yes, yes, Judge: okay, and there’s a motion to extend discovery, umm, clerk: no, there no motion to extend, Judge: there was no motion, excuse me, Baker: there was no such motion filed, it was simply miss designated in the docket that way but they also characterized it as a motion to dismiss, their one in the same. Judge: got it, so i think then, and that’s what your notes says, so I think that were on the same page with respect to that, yeah why don’t we adjourn the motion to dismiss to the same date, the 20th so that were here at one time, okay, we’ll make both of them returnable June 20th, 2014,
Judge Millenky: Next is Mr. Mujaddid why don’t we just stick with your cases, and this is a motion to dismiss the complaint and the cross motion to enter default, this is Docket L4550-13 this is a motion to dismiss brought by certain of the State defendants let me get appearance on the record again, plaintiff?
El Mujaddid: Pros Se Litigant El Mujaddid present, DAG Kelly: Good afternoon your honor Daniel Kelly State of New Jersey Office of the Attorney General, here on behalf of rose Marie Gallagher, the criminal division manager and uh the Cumberland county vicinage Judge: okay, and this is your motion to dismiss, and I’ve had the opportunity to review your brief in this matter and essentially though you go through it with great specificity, your assertion that the writ of mandamus and writ of prohibition is not available because here ummm, were talking about more than merely ministerial duties,
DAG Kelly: That is correct your honor,
Judge Millenky: You also assert that the complaint in so far as its characterized as an action in lieu of prerogative writs fails to comply with the rules governing actions in lieu of prerogative writs that the forum is inappropriate for relief in so far as there’s an application to dismiss pending criminal charges that, that’s more appropriately brought within the context of the criminal court, that in so far as that there are claims against Ms Gallagher she is entitled to quasi judicial immunity and additionally umm its not clear what the assertion is as to her alleged wrong doing,
DAG Kelly: that is, that is correct your honor, i think that there is procedurally umm, a little bit of um, some miss understanding at least from our end, admittedly from our point of view, I believe we have at least two active complaints here uh, from the plaintiff, one that was served on Ms. Gallagher after the case had been dismissed without prejudice, it is was a small 2 page summons and complaint that essentially said that the courts had uh, discriminated against the plaintiff,
Judge Millenky: what was the docket number on that?
DAG Kelly: that i don’t believe has been entered into the docket, that was served on Ms. Gallagher though, and that’s the basis I believe upon which he is seeking default now, I included a copy of it in my certification with this motion that was, there was an original complaint that we never received a copy of a first amended complaint that was dismissed without prejudice on January 10th, 2014, uh and then a, it, i don’t think it was ever technically filed, a summons and essentially a summary of the complaint, served on Ms. Gallagher and subsequently another amended complaint filed and I believe February 2014, umm and. and looking through each of those documents, i believe the claims, specifically limited to just Ms. Gallagher, are essentially stem from the discovery dispute, underlying, ah the plaintiffs municipal court criminal proceedings and that he sought some of the discovery there from the criminal division, umm and essentially now, because the criminal division wasn’t able to provide that discovery, suing them now, under a number of constitutional causes of action and writs of mandamus
Judge Millenky: Okay and the argument on the entire controversy doctrine, how does that arise?
D.A.G. Kelly: Your honor and that arises actually, specifically from the papers that were served on Mrs. Gallagher, umm, i have them in my certification here, they bear relevance because of the oath or certification stated therein, in that specific document, umm as you know the entire controversy doctrine requires a certification when you file a cause of action essentially stating that there are no other cases pending regarding this matter, uhh,
Judge Millenky: so this is that other non filed action as to Mrs. Gallagher,
DAG Kelly: in there Judge: and let me just interrupt you for a second, Mr. Mujaddid do you have a docket number assigned to this other matter,
El Mujaddid: I think, I personally, honestly, I believe it’s a little bit of confusion, going on there was the original 30 + page, um petition that was filed when the matter, was still being prosecuted in Vineland, it was filed before the matter was dismissed, because I was trying to get…Judge: With whom did you file it?
El Mujaddid: It was filed with the Vineland Municipal Court and the Administrative Office of the Court, then eventually the Burlington County Court, umm, that is the one that the other defense counsel moved for a more definite statement, but when the matter got here, umm, it was regarding the three page uhh, complaint form that the court provides, so i believe that’s what he’s referring to
Judge Millenky: Did you get a, another docket number ever assigned,
El Mujaddid: yeah when it got here, this court,
Judge: well we assigned, a docket number for Camden County, because it had been transferred here from Burlington, correct?
El Mujaddid: right, right, right, and what was transferred… Judge: but we have one docket number as far as I know
El Mujaddid: right so there’s only 2 docket numbers related, which is the one Burlington gave it before they forwarded here, and then there’s this docket number so, and.. Judge: right so were dealing about or with one case
El Mujaddid: one case, Judge: and that is a case that is filed under docket L4550-13
El Mujaddid: and totally there has only been three complaints there was my original custom complaint that was filed before the matter was actually dismissed in Vineland and there was the three page judicial form that I got from the state for civil actions, which i believe he is referring too, when he said it was like a summary, it wasn’t enough room on the form to put as much info as the original complaint, umm, so that was served, it got here it was given new number, and then I was compelled to do a more definite statement, so we only have three complaints, the first two and the current amended,
Judge Millenky: so Mr. Mujaddid for purposes of clarification is your last, the second amended complaint, is that the complaint that states, your causes of action,
El Mujaddid: uh, well all of them state causes of action, but that second complaint states, some causes of action, Judge: okay but does that, is that a complete statement that incorporates the, all of the claims that you have, so in other words if someone look’s at that second amended complaint do they in reading it understand fully where you stand in this case,
El Mujaddid: I believe so, as the defense said its a summary of what the larger pleadings provide, cause its only three pages, so, I mean..
DAG Kelly: and your honor,
Judge Millenky: no no I wasn’t referring to that i was referring to the second amended complaint, which is, i don’t know remember how many pages, but its substantial,
DAG Kelly: Yes, and we, Your honor if we can provide clarification on the controversy doctrine really that arises because the summary document he provided states that there are other actions pending in other courts, we don’t now what those are, but immediately when someone says that basically in violation of that certification it immediately implicates the entire controversy doctrine
Judge Millenky: but i think that Mr. Mujaddid is telling us is that he’s got one matter pending, and it’s the matter that is fully outlined in the second amended complaint filed under docket L4550-13 the three page form that your referring to, doesn’t set forth a new or distinct cause of action, i think if i understand Mr. Mujaddid, he filled that out because he essentially received it down stairs and it was never filed as a separate complaint, Mr. Mujaddid is there anything else that’s pending,
El Mujaddid: there is a matter pending against one of the defendants in another county, cape may county, well actually it was recently dismissed, but there was an appeal filed, in regards to that matter which is State v. Wehling, umm, then there is umm, Judge: did that arise from this case in any way from your experiences in vineland,
El Mujaddid: yes,
Judge Millenky: what’s he docket number on that…….
El Mujaddid: umm Judge: Mr. Kelly do you have that,
DAG Kelly: I do not have that, I thought at one point in time there was a reference to federal claims pending, related to these same instances
El Mujaddid: there are federal claims pending umm, in the district court as well, umm, but that’s civil, umm what i was just referring to is criminal, umm
DAG Kelly: I’m unaware of the, I’ve heard a reference to federal claims but I don’t know docket numbers or specifics to those claims
El Mujaddid: well the prosecutor’s file number is 1300-1185
Judge: this is in Cape May
El Mujaddid: yes,
Judge Millenky: so the other case that you’re referring to is a criminal case,
El Mujaddid: this one right Here State v. Wehling is a criminal case, there’s an appeal filed on that case,
Judge: and did that arise State v. Wehling out of the proceedings that occurred in Vineland,
El Mujaddid: yes
Judge Millenky: Mr. Kelly are you aware of that, Kelly: no I’m not aware of that
Judge Millenky: Mr. Mujaddid in terms of, umm, just repeat that docket number again if you will El Mujaddid: 1300-1185 yes, 13-001185
D.A.G. Kelly: do you mind if i see that, is it a federal
El Mujaddid: no this is state, i provided a copy of that document prior to this hearing as well Kelly: that looks like a prosecutors file
El Mujaddid: okay, i got the, i have the docket number, just looking through my papers,
Kelly: your honor in looking at that docket that looks like a letter, maybe the prosecutor’s office filed in the victims witness umm part or portion of the prosecutor’s office i don’t know if that’s necessarily another case in itself
Judge: but Mr. Mujaddid is suggesting that there id something that was dismissed and that there is an appeal pending about it extending from cape may, alright Mr. Mujaddid, we’ll let you look later for those other docket numbers,
El Mujaddid: I have it right here,
Judge: okay just hold off and ill grab that from u in a little bit, the other assertions on the part of the attorney general are that to the extent that you make direct challenges to the criminal charges those are challenges that are raised in the context of the specific criminal proceedings so the position then I think of the state on behalf of the Ms. Gallagher whose the criminal division manager, and on behalf of Cumberland County, Cumberland county Vicinage, in other words the arm of the Superior Court of NJ is that for those reasons that i just tried to list you don’t have a viable cause of action against them that your causes of action cannot succeed, let me and let me hear your response,
El Mujaddid: well my causes of action against the criminal division are specifically regarding the missing discovery materials that should be on file with the criminal division, if the Vineland prosecution was legit, and my causes of actions against the criminal division is the failure to process certifications in accords with R. 3:2 and 7:2 and the failure to set the proper Bail Scheduling fee, uhh one of the cases i provided in the actual action in lieu the Ippolito corporation case there a writ of mandamus was issued in regards to that plaintiff who had been denied due process with regards to complaints that were filed that case was dealing with uhhh, zoning violations well this case deals with indictable offenses, but the same issue,,,,
Judge Millenky: well its different because a zoning violations would always be heard within the civil courts, where there is a discovery violation in the context of a criminal proceeding, the criminal courts are well tuned towards addressing the discovery violations, so for example the typical issue would be something that is called a Brady violation and where someone alleges that discovery that should of have been turned over in the context of a criminal case, was not turned over then there is the ability to demand it from the court, and if in fact the court is not responsive, in a way that particular litigant thinks they may file an appeal,
El Mujaddid: I’ve cited Brady in my action in lieu its cited along with Carter, Judge: I understand, I understand,
El Mujaddid: I’m not attempting to sue Ms. Gallagher for malicous prosecution if that’s what the issue is or even,… I’m seeking a writ for the missing discovery materials at the end of the day,
Judge Millenky: okay, anything further on the part of the state,
D.A.G. Kelly: uh, no, nothing further your honor
Judge: Counsel what I’m going to do is just give you a written decision on this rather than an oral decision from the bench, then i will try to address each of the arguments that has been set forth, i just tried to summarize them in terms of what it is that we’re dealing with, we’ll give you a written decision I’m going to anticipate we’ll have it to you in about two weeks time,
D.A.G. Kelly: Thank you your honor,