RYAN v. NEW JERSEY STATE BOARD OF NURSING et al

Filing 40

OPINION. Signed by Chief Judge Jerome B. Simandle on 1/9/2017. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOELENE RYAN,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-1250 (JBS/JS)

v.
NEW JERSEY STATE BOARD OF
NURSING, GEORGE HEBERT, AND
DR. LEO SELM

OPINION

Defendants.

APPEARANCES:
Ms. Joelene Ryan
P.O. Box 155
Franklinville, NJ 08322
Plaintiff, pro se
Gregory J. Sullivan, Deputy Attorney General
New Jersey Attorney General’s Office
25 Market Street
P.O. Box 116
R.J. Hughes Justice Complex
Trenton, NJ 08625
Attorney for Defendants New Jersey State Board of Nursing
and George Hebert

SIMANDLE, Chief Judge:
INTRODUCTION
In this action, Plaintiff Joelene Ryan, a nurse, asserts
claims for denial of due process against the New Jersey State
Board of Nursing and George Hebert, a one-time Director of the
Board, in connection with an investigation by the Board in 2011

and 2012 that culminated in the suspension of Plaintiff’s
nursing license in 2013. Plaintiff in essence claims that the
Board mishandled its investigation by failing to collect
complete hospital records, refusing to allow her to present
evidence in her own defense, and misleading Plaintiff during
questioning at the hearing.
This case comes before the Court on motion to dismiss by
the New Jersey State Board of Nursing and George Hebert [Docket
Item 27] and Plaintiff’s motion requesting that the Court accept
her untimely Opposition Brief [Docket Item 31].1 For the
following reasons, the Court will grant both motions and will
dismiss the Amended Complaint with prejudice.
BACKGROUND
The following recitation of the facts of this case are
taken from this Court’s June 28, 2016 Opinion and Order on a
previous motion to dismiss. Ryan v. New Jersey State Bd. of
Nursing, Case No. 15-1250, 2016 WL 3533997 (D.N.J. June 28,
2016). The Court accepts as true for the purposes of the instant

1

The Court had previously granted Plaintiff a 30-day extension
of time in which to file her Opposition Brief, making her brief
due by August 25, 2016. [Docket Item 29.] Plaintiff’s submission
was not filed until September 28, 2016. Nonetheless, Defendants
were not meaningfully prejudiced by Plaintiff’s delay, and for
good cause shown, the Court will grant Plaintiff’s request and
consider the arguments raised in her untimely Opposition Brief.
2

motions the following facts as alleged in the Amended Complaint.
[Docket Item 3.]
Plaintiff Joelene Ryan was a Registered Nurse in the
Intensive Care Unit at Memorial Hospital of Salem County (“the
Hospital”). (Am. Compl. at 2.) Plaintiff alleges that after she
began raising “safety, compliance, medication administration
protocols and policy concerns” with her superiors, she received
unwarranted Hospital Discipline notices on August 20, 2010 and
December 8, 2010 which did not identify the offending incidents.
(Id. at 2-3.) In response, Plaintiff wrote a letter to the Chief
Nursing Officer objecting to the discipline notices which had
been received without any specific allegations of misconduct.
(Id. at 3.) Plaintiff alleges that she “experienced retaliation
within three days after speaking out” and was terminated from
her position at the Hospital on or about December 14, 2010.
(Id.)
Separately, the New Jersey State Board of Nursing (“the
Board”) began an investigation into the nature of Plaintiff’s
termination on or about April 21, 2011. (Id. at 4.) In response
to a request for more information, the Hospital produced
“numerous pages of allegations” to the Board about the
circumstances surrounding Plaintiff’s termination. (Id.) This
material, including copies of official Hospital records, was
allegedly kept from Plaintiff until she received the records
3

through Open Public Records Act requests in 2012 and 2013. (Id.
at 5.) Plaintiff alleges that the documentation provided to the
Board by the Hospital had “obviously been tampered with” and
that the Board was negligent in failing to acquire “Plaintiff’s
nursing notes, Plaintiff’s nursing assessment flow sheets,
physician order pages on the Plaintiff’s patients, alleged
incident reports and other documentary evidence” from the
Hospital to complete its investigatory file on her. (Id.)
Plaintiff alleges that the Board was required to obtain these
documents in order to “perfect” the complaint against her. (Id.)
After the Board received these written allegations from the
Hospital, the Board issued a letter to Plaintiff titled
“Complaint” on or about August 18, 2011. (Id. at 6.) Plaintiff
answered the Board’s complaint in writing on or about September
15, 2011, but Plaintiff alleges that the Board never read her
response because it was “too long.” (Id.)
Plaintiff was subpoenaed to testify before the Board in
response to the complaint on or about December 14, 2011. (Id.)
Plaintiff objected to testifying and submitted supplemental
written communications to the Board instead, but ultimately
appeared to testify before the Board in Newark, New Jersey on or
about January 11, 2012. (Id. at 6-7.) Plaintiff alleges a litany
of due process violations at this hearing, including “cynical
and hostile” questioning of Plaintiff and denying her the
4

opportunity to present her own evidence or address the
credibility of the Hospital. (Id. at 7.) Plaintiff alleges that
she was questioned by the Board about two incidents that
occurred during her employment at the Hospital at this hearing,
but that she gave “erroneous testimony” because the Board never
identified “the patient or the date” in question. (Id.)
Thereafter the Board issued a Provisional Order on or about
April 4, 2012, directing Plaintiff to undergo a psychological
evaluation. (Id. at 8.) This order “did not state any Findings
of Fact to substantiate such an order.” (Id.) When Plaintiff
inquired as to why she was required to undergo an evaluation,
Plaintiff was allegedly told it was “because of [her] written
answer and because [she was] flustered at testimony.” (Id. at
9.) Plaintiff contends that “The Board made assumptions about
the Plaintiff’s mental health, without any reasonably expected
inquiry into Plaintiff’s demeanor at testimony: a failure of due
care and due diligence.” (Id.) Plaintiff was encouraged, but
“never required,” to enter the Recovery and Monitoring Program
(“RAMP”) run by the New Jersey State Nurses Association. (Id.)
The Board issued the Plaintiff a Final Order of Discipline
on or about June 18, 2012 and a Corrected Final Order on or
about July 24, 2012. (Id. at 10-11.) The Board’s Orders found
that Plaintiff had a “disordered thought process” because of her
“demeanor at testimony” and her “written answers.” (Id. at 11.)
5

The Orders placed restrictions on Plaintiff’s work as a nurse
and ordered that she undergo a psychological evaluation with
RAMP or another Board approved evaluator. (Id.; see also Def.
Mot. Ex. A & B.)2 Plaintiff alleges that these Orders were not
removed from the public record although she urged this many
times. (Id. at 13.)
Plaintiff alleges that Board initially would not disclose
the names of its approved evaluators to her, so she began seeing
a private psychologist in or around June 18, 2012. (Id. at 12.)
Plaintiff alleges that her attorney at the time never notified
the Board that she was seeking counseling, and that she later
discovered that he had a conflict of interest in representation.
(Id.)
Dr. Selm, a Board approved evaluator, performed a
psychological evaluation of Plaintiff in July 2012. (Id. at 11,
14; see also Def. Mot. Ex. D.) The Board provided Dr. Selm with
its Provisional Order, transcripts of Plaintiff’s testimony,
copies of her written submissions, and records from the Hospital
in advance of his evaluation. (Def. Mot. Ex. E.) Plaintiff

2

While the Court generally only considers matters within the
four corners of the Plaintiff’s complaint on a motion to
dismiss, the Court may consider a “document integral to or
explicitly relied upon in the complaint” without converting the
motion to dismiss into a motion for summary judgment. Schmidt v.
Skolas, 770 F.3d 241, 249 (3d Cir. 2014); In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
6

signed an informed consent form prior to her meetings with Dr.
Selm. (Def. Mot. Ex. C.)
Dr. Selm diagnosed Plaintiff with three personality
disorders, allegedly in error. (Am. Compl. at 14-15; see also
Def Mot. Ex. D.) Dr. Selm used the MCMI III test, which
Plaintiff alleges was inappropriate for her condition, not
reliable for legal proceedings, and leads often to misdiagnoses.
(Am. Compl. at 14.) Plaintiff alleges that her “MCMI scores are
not congruent with Dr. Selm’s diagnostic impression,” that Dr.
Selm employed “gas lighting techniques when questioning the
Plaintiff,” and that his narrative report misstated that she had
been “disciplined or suspended” at her first nursing job. (Id.
at 15.) Plaintiff further alleges that Dr. Selm committed gross
negligence and malpractice by not referencing the DSM-IV in his
evaluation. (Id.)
On or about February 15, 2013, the Board issued its Final
Order of Discipline regarding Plaintiff. (Def. Mot. Ex. F.) The
Board suspended Plaintiff’s nursing license for a “minimum
period of one year” and ordered that she undergo therapy on a
regular basis and that her counselor submit quarterly progress
reports to the Board. (Id. at 5.)
Plaintiff has filed two appeals in the Superior Court of
New Jersey, Appellate Division on July 2, 2012 and December 16,
2013 contesting both disciplinary orders from the Board. (Am.
7

Compl. at 17.) She has apparently attempted numerous times to
confront Dr. Selm regarding the “many serious errors in his
narrative report” but her attempts to have him correct his
testimony have been unsuccessful. (Id. at 16-17.) She has also
allegedly corresponded in writing with Governor Christie
regarding the Board’s alleged efforts to force her into RAMP.
(Id. at 10.) Plaintiff has contacted Consumer Affairs about the
program but they have “refused to investigate any of this
matter” because they say “the Board is fair.” (Id.)
Plaintiff filed this action on February 13, 2015 [Docket
Item 1] and filed an Amended Complaint on March 16, 2015 [Docket
Item 3], alleging violations of due process guaranteed by the
Fifth Amendment of the United States Constitution and the New
Jersey Constitution, New Jersey statutes, the New Jersey
Administrative Code, the New Jersey Administrative Procedures
Act, and HIPAA, and claims for slander, libel, gross negligence,
and malpractice. [Docket Item 5.] Defendant Selm timely filed a
motion to dismiss [Docket Item 13] for lack of personal
jurisdiction and for quasi-judicial immunity, which the Court
granted. [Docket Item 25.] In that same Opinion and Order, the
Court also vacated the Clerk of Court’s entry of default against
the Board and ordered the Board to answer or otherwise respond
to the Amended Complaint. The instant motion to dismiss [Docket

8

Item 27] followed. The Court will decide this motion without
holding oral argument pursuant to Fed. R. Civ. P. 78.
STANDARD OF REVIEW
1. Rule 12(b)(1)
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) must be
granted if the court lacks subject matter jurisdiction to hear a
claim. In re Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012). When a defendant files
a motion under Rule 12(b)(1), the plaintiff bears the burden of
establishing subject matter jurisdiction for the sake of
remaining in federal court. Gould Elec., Inc. v. United States,
220 F.3d 169, 178 (3d Cir. 2000).
Defendants’ motion presents a facial challenge to subject
matter jurisdiction. A “facial attack” is “an argument that
considers a claim on its face and asserts that it is
insufficient to invoke the subject matter jurisdiction of the
court because, for example, it does not present a question of
federal law, or . . . because some other jurisdictional defect
is present.” Constitution Party of Pa. v. Aichele, 757 F.3d 347,
358 (3d Cir. 2014). By contrast, a factual challenge makes an
argument that the facts of the case do not support the asserted
jurisdiction. Id. Unlike a factual attack, in which the court
may weigh and consider evidence outside the pleadings and the
plaintiff’s allegations are not entitled to the presumption of
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truth, a district court reviewing a facial challenge applies the
more favorable standard of review under Rule 12(b)(6). Thus, the
Court accepts all material allegations as true and construes the
alleged facts in favor of the nonmoving party. In re Schering
Plough Corp., 678 F.3d 235, 243 (2012) (citing Gould Elec., Inc.
v. United States, 220 F.3d 169, 176 (3d Cir.2000) and Ballentine
v. United States, 486 F.3d 806, 810 (3d Cir. 2007)).
2. Rule 12(b)(6)
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need
only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted). While a complaint is not required to contain detailed
factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
10

grounds upon which it rests. Id. A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court
must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
DISCUSSION
1. Sovereign Immunity
First, Defendants contend that the Amended Complaint must
be dismissed with prejudice because Plaintiff’s claims against
the Board and Mr. Hebert3 are barred by the doctrine of sovereign
immunity. For the following reasons, the Court agrees.

3

The Court understands Plaintiff’s claims against Mr. Hebert to
be against him in his “official capacity” as the Executive
Director of the State Board of Nursing at the time of the
Board’s adjudication of Plaintiff’s nursing license in 20112013. A suit against a state official in his official capacity
is treated as a suit against the state. Hafer v. Melo, 502 U.S.
21, 25 (1991). In contrast, a suit against a state official in
his personal capacity, in which a plaintiff seeks to hold the
official liable for conduct he himself undertook under color of
state law, is treated as a suit against the person of the
official, and not his office. Id.
The Amended Complaint contains no allegations particular to
Mr. Hebert and any actions or statements he made during the
course of Plaintiff’s interactions with the Board. Additionally,
Plaintiff sought by a Motion to Substitute Defendants [Docket
Item 34] before Magistrate Judge Schneider to replace Mr. Hebert
in the case caption with Dorothy S. Carolina, his successor as
the Executive Director of the New Jersey State Board of Nursing,
11

The Eleventh Amendment states that “[t]he Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. State
sovereign immunity is a jurisdictional bar which deprives
federal courts of subject matter jurisdiction. Kimel v. Florida
Bd. of Regents, 528 U.S. 62, 73 (2000). Under the Eleventh
Amendment, an unconsenting state or state official is immune
from suit brought in federal court by citizens of that state or
citizens of another state. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). It also divests the federal
courts of jurisdiction over supplemental state law claims
against the state. Raygor v. Regents of Univ. of Minnesota, 534
U.S. 533, 534 (2002).

pursuant to N.J. Ct. R. 4:34-4 and F. R. Civ. P. 25(d), both
rules of court governing suits against a state official in his
official capacity. Accordingly, Plaintiff because appears to
assert claims against Mr. Hebert in his official capacity only
as the Executive Director of the Board, he enjoys the same
status under law as the Board itself.
Even if the Court construes Plaintiff’s claims against Mr.
Hebert as individual capacity claims, as she sought to do in a
second amended complaint denied by Judge Schneider without
prejudice [Docket Items 30 & 38] and as she asserts in a letter
filed with the Court under seal [Docket Item 39], and sovereign
immunity is not applicable to her claims against that defendant,
Plaintiff has not stated constitutional or tort claims against
him for the reasons discussed in Subparts 2 & 3, below.
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State sovereign immunity extends to entities and persons
who can show that, even though the State is not the named
defendant, “the [S]tate is the real party in interest.” Fitchik
v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659
(3d Cir. 1989) (citing Edelman v. Jordan, 415 U.S. 651, 663
(1974)). The Third Circuit provides an analytical framework for
determining whether a state entity, such as the State Board of
Nursing, is “an arm of the state” and therefore entitled to
Eleventh Amendment immunity: “(1) whether payment of a judgment
resulting from the suit would come from the state treasury, (2)
the status of the entity under state law, and (3) the entity’s
degree of autonomy.” Chisolm v. McManimon, 275 F.3d 315, 323 (3d
Cir. 2001) (citing Fitchik, 873 F.2d at 659). In this case, all
three Fitchik factors balance in favor of finding that the New
Jersey State Board of Nursing is an arm of the state.
First, any money judgment awarded against the Board would
be paid by the New Jersey state treasury. This is the most
important of the Fitchik factors, because when a lawsuit is “in
essence one for recovery of money from the state, the state is
the real, substantial party in interest and is entitled to
invoke its sovereign immunity from suit even though individual
officials are nominal defendants from suit even though
individual officials are nominal defendants.” Ford Motor Co. v.
Department of Treasury of Ind., 323 U.S. 459, 464 (1945). Under
13

the New Jersey Tort Claims Act (“NJTCA”), N.J.S.A. 59:1-1 et
seq., the state is liable for injuries caused by public
officials acting within the scope of their employment. N.J.S.A.
59:2-2; 59:10A-1. The state may only refuse to defend and
indemnify an employee if the Attorney General determines that
the public official acted outside the scope of his employment or
acted with “actual fraud, willful misconduct or actual malice.”
N.J.S.A. 59:10A-2. Neither of those circumstances are present
here, where Plaintiff complains of how the Board adjudicated her
nursing license. With respect to the Board’s status under state
law and degree of autonomy, the Court finds that the Board is a
“surrogate for the state” and not an “independent agency,”
Fitchik, 873 F.2d at 662, because the Board’s membership is
appointed solely by the Governor of New Jersey, N.J.S.A. 45:1124, and because its powers and responsibilities, including
overseeing nursing licensing and education, are prescribed by
state statute. See N.J.S.A. 45:11-23 et seq. Accordingly,
because the Board is an arm of the State of New Jersey, it
enjoys the same sovereign immunity from suit in federal court as
the State of New Jersey itself.
Plaintiff’s argument that the Board and Mr. Hebert are not
entitled to immunity because they committed civil rights
violations in adjudicating her nursing license is misdirected.
State sovereign immunity is subject to only three exceptions:
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(1) where Congress abrogates the state’s immunity pursuant to a
valid exercise of its Fourteenth Amendment power; (2) where a
state has validly waived its sovereign immunity and (3) where
prospective injunctive relief is sought against state officials
to end continuing or ongoing violations of federal law. MCI
Telecomm. Corp. v. Bell Atl. Pennsylvania, 271 F.3d 491, 503 (3d
Cir. 2001). The Supreme Court has determined that Congress did
not abrogate state sovereign immunity when it passed § 1983, the
statute by which state officials may be held liable for a
deprivation of an individual’s constitutional rights. Edelman v.
Jordan, 415 U.S. 651, 677 (1974). Plaintiff’s reliance on
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), is misplaced because
that case dealt with a different statute, the Civil Rights Act
of 1964, which the Supreme Court decided is an express
abrogation of state sovereign immunity. Id. at 456.4 Because none
of the exceptions to sovereign immunity apply to this case, the
Court finds that it lacks jurisdiction to adjudicate Plaintiff’s
case against the Board and Mr. Hebert. Plaintiff’s claims
against the Board and Mr. Hebert will be dismissed, and this
dismissal shall operate with prejudice.5

4

Nor has Plaintiff shown that New Jersey validly waived its
sovereign immunity such that it can be sued in federal court for
any of Plaintiff’s claims, or that she seeks any prospective
injunctive, rather than monetary, relief.
5 A court may deny leave to amend a complaint where it is
apparent that “(1) the moving party has demonstrated undue
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2. Plaintiff’s Constitutional Claims Against the Board
In the alternative, Defendants assert that the Amended
Complaint must be dismissed because it fails to state a claim
for deprivation of constitutional rights under 42 U.S.C. § 1983,
or the corresponding state law, the New Jersey Civil Rights Act,
N.J.S.A. 10:6-2.6 To state a claim under § 1983, a plaintiff must
allege: (1) the violation of a right secured by the Constitution
or laws of the United States and (2) that the alleged
deprivation was committed or caused by a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988)
(emphasis added); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011). It is black-letter law that “neither a State nor its
officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989). Because the Amended Complaint names as Defendants
only the Board, an arm of the state, and Mr. Hebert in his

delay, bad faith or dilatory motives, (2) the amendment would be
futile, or (3) the amendment would prejudice the other party.”
United States ex rel. Schumann v. Astrazeneca Pharma. L.P., 769
F.3d 837, 849 (3d Cir. 2014) (citing Lake v. Arnold, 232 F.3d
360, 373 (3d Cir. 2000). In this case, because the Plaintiff’s
complaint is legally insufficient, and not merely factually
insufficient, any amendment would be futile
6 Courts in this district interpret the NJCRA analogously to §
1983. Coles v. Carlini, 162 F. Supp. 3d 380, 404-05 (D.N.J.
2015) (collecting cases). In particular, both statutes define
“person” in the same way. Didiano v. Balicki, 488 Fed. Appx.
634, 638 (3d Cir. 2012). These deficiencies are also not cured
by clarifications Plaintiff offers in her recent supplemental
letter [Docket Item 39], as discussed elsewhere in this Opinion.
16

official capacity as Director of the Board, and neither is a
“person” amenable to suit under § 1983, Plaintiff’s claims for
constitutional violations under both the United States and New
Jersey constitutions fail.
Even if Plaintiff’s claims against Mr. Hebert are construed
as individual capacity claims, as she sought to do in a second
amended complaint denied by Judge Schneider without prejudice
[Docket Items 30 & 38] and as she asserts in a letter filed with
the Court under seal [Docket Item 39], Plaintiff has not stated
a claim under § 1983 or the NJCRA. It is black-letter law that
state actors may be liable under § 1983 only for their own
constitutional conduct. Bistrian v. Levi, 696 F.3d 352, 366 (3d
Cir. 2012). The Amended Complaint contains no allegations
particular to Mr. Hebert and any actions or statements he made
during the course of Plaintiff’s interactions with the Board.
Furthermore, to the extent that Plaintiff asserts that her due
process rights were violated because the Board and its Director
failed to follow the law or reached erroneous conclusions, New
Jersey law has provided the process of appeal and review in the
Superior Court of New Jersey, of which Ms. Ryan has already
availed herself, in which claims of denial of administrative due
process may be raised and remedied. Due process simply does not
require a second avenue of judicial review, in federal court, of
a state administrative board decision, where the state has
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already provided for state court review in which all procedural
and substantive objections can be raised by the aggrieved party.
3. Plaintiff’s Tort Claims Against the Board
Defendants also take the position that Plaintiff’s nonconstitutional tort claims against the Board and Mr. Hebert,
including for defamation, malicious prosecution, intentional
infliction of emotional distress, and invasion of privacy, must
be dismissed because Plaintiff failed to file the necessary
notice of claim before instituting this suit in federal court.
The NJTCA requires that a prospective plaintiff seeking
money damages from a public entity (such as the Board) must
first file a notice of claim with the public entity within 90
days of the incident giving rise to her claim. N.J.S.A. 59:8-8.
That 90-day period for filing a notice of claim can be extended
up to one year at the discretion of a judge of the Superior
Court of New Jersey, if a plaintiff can show “extraordinary
circumstances” for her delay. N.J.S.A. 59:8-9. Once two years
have elapsed since the incident giving rise to her claim and no
notice has been received, the plaintiff “shall be forever barred
from recovering against a public entity or public employee.”
N.J.S.A. 59:8-8. Failure to comply with the notice of claim
procedures set forth sections 59:8-3 through 59:8-11 will bar a
plaintiff from receiving damages from a public entity,

18

regardless of her putative entitlement to damages under other
provisions of the NJTCA. N.J.S.A. 59:8-3.
Plaintiff has failed to comply with the notice of claim
procedures required by N.J.S.A. 59:8-3, and this requires
dismissal of her tort claims against the Board and Mr. Hebert.
As of July 6, 2016 the State of New Jersey had no record of a
notice of claim filed by Plaintiff against the Board or Mr.
Hebert. See Certification of Stephanie Hargrove [Docket Item 274]. Plaintiff’s assertion in her Opposition Brief that she filed
a notice of claim with the State by certified mail on August 4,
2016 is not enough to cure this deficiency; there is no
indication that she sought permission from a Superior Court
judge to file her late notice, N.J.S.A. 58:8-9, and in any
event, her notice was filed more than two years after the last
incident giving rise to her claim against the Board, the
issuance of its Final Order of Discipline on February 15, 2013.
N.J.S.A. 59:8-8. Accordingly, Plaintiff’s tort claims in the
Amended Complaint must be dismissed.
CONCLUSION
An accompanying Order will be entered.

January 9, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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