Opinion
DOCKET NO. A-0703-13T1
12-02-2015
PETER LARRY STONE, Plaintiff-Appellant, v. THE NEW JERSEY ADMINISTRATIVE OFFICE OF THE COURTS, VICINAGE 1 OF THE SUPERIOR COURT, THE STATE OF NEW JERSEY, Defendants-Respondents.
Duffy Law Group, attorneys for appellant (Thomas B. Duffy, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa Puglisi, Assistant Attorney General, of counsel; Kristen N. Collar, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Maven and Carroll. On appeal from the Superior Court of New Jersey, Cumberland County, Law Division, Docket No. L-1076-12. Duffy Law Group, attorneys for appellant (Thomas B. Duffy, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa Puglisi, Assistant Attorney General, of counsel; Kristen N. Collar, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Peter Larry Stone commenced an action in the Superior Court, Chancery Division, against his brother, Roger B. Stone 3rd, regarding their jointly-held property in Mays Landing. During those proceedings, plaintiff urged the judge to appoint a guardian ad litem for Roger, who, plaintiff claimed, suffered from mental disabilities. The chancery judge appointed an attorney to serve as guardian ad litem, ordered a psychiatric evaluation and further ordered plaintiff to pay the expert's fee of $500.
At other points in the record, the name appears as "Roger B. Stone III." To avoid confusion, we sometimes refer in this opinion to plaintiff's brother by his first name. We intend no disrespect by this informality.
The psychiatrist concluded that Roger exhibited "no evidence of a major psychiatric disorder[,]" nor was there any "suggestion of bipolar disorder or schizophrenia." However, the expert opined that Roger was "impaired in his ability to participate in his litigation by his verbosity and inability to stay focused[,]" and, although he had "the mental capacity to understand the issues that [were] presented[,]" he could not "effectively and proportionately use the legal system to resolve conflicts with his brother." After reviewing the psychiatric report, however, the judge determined "that in fact Roger [] was not incapacitated [and] there was no reason for a guardian [] to continue . . . ."
As reflected in the court's final judgment of August 30, 2010, plaintiff was in large part successful in the chancery suit. Among other things, the judge also ordered that the guardian's fee of $1710 would be shared equally by plaintiff and Roger.
In April 2012, plaintiff filed a complaint naming the New Jersey Administrative Office of the Courts, Vicinage I of the Superior Court, and the State of New Jersey as defendants. Plaintiff alleged that defendants violated his rights under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12131-12134, Section 504 of the Rehabilitation Act (RA), 29 U.S.C.A. § 794, and the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49. The complaint also alleged "Disability Harassment" in the fourth count and sought declaratory and injunctive relief under these three statutes in its fifth count.
Vicinage I encompasses Atlantic and Cape May counties.
Specifically, plaintiff alleged that he suffered from a disability, specifically diabetes, and Roger had a "mental disability." He alleged that, in violation of the ADA, RA and LAD, defendants "surcharg[ed]" him and his brother for "disability related services[,]" i.e., the appointment of a guardian ad litem and expert, in order to "end the lawsuit." In count four, plaintiff alleged there was a "pervasive and uncontrolled atmosphere of malaise toward disability discrimination issues" in the court system, and Vicinage I ignored the "Supreme Court's own rules" and the statutory and regulatory duties imposed under these statutes.
Defendants filed a motion to dismiss the complaint for failure to state a claim pursuant to Rule 4:6-2(e). Plaintiff filed a cross-motion to hold defendants in contempt, or in the alternative, seeking a protective order based on allegations of intimidation and retaliation. Plaintiff's cross-motion was denied on the record following oral arguments before Judge Robert G. Malestein on March 22, 2013.
By then, the litigation had been transferred to Vicinage II, where Judge Malestein sits. Plaintiff's notice of appeal seeks review of a March 22, 2013 order, but none is included in the record. Nor has plaintiff raised any arguments in his brief regarding the denial of his cross-motion, thereby waiving any issues in this regard. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div.) ("An issue that is not briefed is deemed waived upon appeal."), certif. denied, 222 N.J. 17 (2015).
On May 24, 2013, the judge heard oral arguments on defendants' motion to dismiss and reserved decision. In a comprehensive written opinion that accompanied the June 18 order dismissing the complaint with prejudice, Judge Malestein thoroughly reviewed the "factual predicate[s]" of plaintiff's causes of action. He noted that plaintiff had not timely appealed the 2010 judgment that apportioned the guardian's fee between him and Roger. The judge also noted that Roger had actually filed an action in federal district court against these same defendants, alleging violations of the same statutes arising, in part, from the chancery proceedings. Stone v. N.J. Admin. Office of the Courts, No. 11-3299, 2012 U.S. Dist. LEXIS 125919 (D.N.J. Sept. 5, 2012). Judge Malestein noted that the federal court had dismissed Roger's complaint on several grounds, including failure to state a claim. Roger appealed the dismissal to the Third Circuit.
Since the order under review was entered, the Third Circuit issued its decision in Roger's appeal. In Stone v. N.J. Admin. Office of the Courts, 557 F. App'x 151 (3d Cir. 2014), the court affirmed the dismissal of Roger's complaint for failure to state a claim. Id. at 153. The court found the complaint did "not sufficiently allege that [Roger] was excluded from or denied the benefit of the courts based on his disabilities." Id. at 154. Regarding Roger's claim that the chancery judge's failure to appoint counsel or continue the appointment of the guardian ad litem violated the ADA, RA and LAD, the court concluded
Roger has not provided any reason to believe that discrimination, rather than a good-faith conclusion that he did not need the assistance of a guardian or counsel, was the but-for cause of these denials. Without a plausible allegation of but-for causation, Roger cannot make out a prima facie case for discrimination.
[Ibid.]
The judge then applied the appropriate standard for evaluating a motion brought under Rule 4:6-2(e). See, e.g., Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). He properly recognized that under the ADA, a party must allege that
(1) he [is] a "qualified individual with a disability"; (2) he was either excluded from participation in, or denied the benefits of, . . . [defendant]'s services, programs, or activities, or was otherwise discriminated against by . . . [defendant]; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.The judge assumed that even if plaintiff's diabetes was a qualifying disability, "there [was] no allegation that his diabetes was the cause of the exclusion, denial of benefits or discrimination."
[Lasky v. Moorestown Twp., 425 N.J. Super. 530, 538 (App. Div.) (quoting Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.), cert. denied, 522 U.S. 971, 118 S. Ct. 423, 139 L. Ed. 2d 324 (1997)), certif. denied, 212 N.J. 198 (2012).]
The judge also properly concluded that plaintiff's RA and LAD claims required a similar analysis. See Chisolm v. McManimon, 275 F.3d 315, 324 n. 9 (3d Cir. 2001) (observing that case law developed under the RA applied to ADA and LAD claims). The judge reasoned that "[a]gain, [p]laintiff has not alleged that because of his disability, e.g.[,] diabetes, he was excluded from participation in or denied the benefits of others seeking the services of the New Jersey Judiciary."
The judge also rejected plaintiff's substantive claim that any costs associated with the litigation were "surcharge[s]" imposed in violation of the ADA and LAD. He rejected plaintiff's assertion that the psychiatric evaluation and appointment of the guardian ad litem were "auxiliary aids or services," required to be supplied in a non-discriminatory fashion under the regulations implementing the ADA and LAD. See 28 C.F.R. 36.303; N.J.A.C. 13:13-4.6. Lastly, regarding count four, the judge noted that the statutes provided no private cause of action for a "failure to administer the terms of anti-disability discrimination procedures." See Wood v. Town of Falmouth, 419 F. Supp. 2d 3, 6 (D. Mass. 2006) (holding no private cause of action for failure to follow anti-discrimination policies and procedures); see also Duffy v. Freed, 452 F. App'x 200, 202 (3d Cir. 2011) (same).
Addressing defendants' argument that plaintiff lacked standing to assert claims of discrimination based upon his brother's alleged disability, the judge cited New Jersey's "liberal approach to standing" and characterized plaintiff's claims as those of one "required to pay the 'surcharge' for another's disability." He found plaintiff had standing to file suit, but, for the reasons already noted, the complaint failed to state a cause of action. The judge dismissed plaintiff's complaint with prejudice, and this appeal followed.
Before us, plaintiff argues that his complaint adequately stated a cause of action under the ADA, RA and LAD, and the judge erred by focusing on plaintiff's alleged disability — diabetes — "as the sole causative element in the surcharging" that violated the statutes. Indeed, almost all of plaintiff's brief focuses on Roger's alleged mental health disability. Plaintiff also argues that he was not collaterally estopped from bringing this action, either by failing to file a timely appeal from the 2010 chancery judgment or by the decision in Roger's federal litigation.
We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Malestein.
Plaintiff's complaint clearly failed to allege any nexus between his alleged disability and discriminatory conduct by defendants. Moreover, to the extent he relies upon Roger's alleged disability as the causative agent for invidious discrimination, plaintiff failed to adequately plead any statutory violations.
Assuming arguendo Roger was indeed disabled for purposes of the ADA and LAD, providing him with a guardian ad litem was not a required "reasonable accommodation" under the LAD or its implementing regulations. See N.J.A.C. 13:13-4.1 to -4.11. Nor was it an auxiliary aid or service defendants were required to provide under the ADA. See 28 C.F.R. 36.303. Simply put, the chancery court exercised its protective power under Rule 4:26-2 to appoint a guardian ad litem for Roger for a brief period of time pending the psychiatric examination requested by plaintiff. The judge ultimately determined Roger was not "incapacitated" and no longer needed the guardian's services. Costs associated with litigating an action that plaintiff commenced, and which were incurred through the proper exercise of the chancery judge's broad powers, simply do not evidence violations of the ADA, RA or LAD, or their accompanying regulations.
To the extent we have not otherwise addressed plaintiff's specific contentions, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
As to specific claims regarding the costs imposed for the appointment of the guardian ad litem and the psychiatric evaluation, the court simply noted that because those costs were assessed to plaintiff, "Roger ha[d] not shown that he was injured based on the alleged [statutory] violations." Ibid.