                        NOT FOR PUBLICATION WITHOUT THE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-3730-16T2

T.A., T.C., B.C.,
M.E., J.S., and R.S.,1

        Plaintiffs-Appellants,

v.

ERICK MELGAR, JANETTE BENNETT,
EDNA MAHAN CORRECTIONAL FACILITY
FOR WOMEN, and NEW JERSEY DEPARTMENT
OF CORRECTIONS,

        Defendants,

and

WILLIAM HAUCK, JAMES MARAFIOTI,2
SCOTT LAMOREAUX,3 and WILLIAM BROWN,

     Defendants-Respondents.
______________________________________

              Submitted May 21, 2018 – Decided July 19, 2018

              Before Judges Ostrer, Rose and Firko.

              On appeal from Superior Court of New Jersey,
              Law Division, Hunterdon County, Docket No.


1
    We use initials to protect the plaintiffs' privacy interests.
2
    Improperly pled as Chief Mariordi.
3
    Improperly pled as Scott Lamaroux.
          L-0466-12.

          Walsh   Pizzi   O'Reilly   Falanga,   L.L.P.,
          attorneys for appellants (Marc D. Haefner, of
          counsel and on the briefs; Katelyn O'Reilly,
          on the briefs).

          Gurbir S. Grewal, Attorney General, attorney
          for respondents (Melissa H. Raksa, Assistant
          Attorney General, of counsel; Tasha M. Bradt,
          Deputy Attorney General, on the brief).

PER CURIAM

     This appeal has its genesis in sexual and physical abuse

allegations made by various inmates incarcerated in the North Hall

of Edna Mahan Correctional Facility for Women ("EMCFW") against

their "cage officer," Erick Melgar.     Plaintiffs T.A., T.C., B.C.,

M.E., J.S., and R.S. are six of those inmates.           Following an

investigation by the Department of Corrections' ("DOC") Special

Investigations   Division   ("SID"),   departmental   charges   against

Melgar were substantiated, and he ultimately was terminated from

employment.4

     Plaintiffs appeal from an August 12, 2016 order granting

partial summary judgment that dismissed with prejudice their civil



4
  Having settled plaintiffs' civil claims against him, Melgar is
not a party to this appeal. Plaintiffs also named as defendants
the DOC, EMCFW, and prison personnel.    Those defendants either
settled their claims with plaintiffs, or were dismissed from the
litigation for reasons that are not pertinent to this appeal.



                                  2                             A-3730-16T2
rights claims against Melgar's supervisors, William Hauck, James

Marafioti,   Scott    Lamoreaux,     and   William   Brown   (collectively,

"supervisory defendants").         Plaintiffs also appeal from a March

13, 2017 order, granting defendants' motion for reconsideration

of a January 30, 2013 order5 entered by another judge, thereby

dismissing the tort claims pertaining to T.C., B.C., and R.S.6 for

failure to timely file a notice of claim pursuant to the New Jersey

Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3.            For the reasons

that follow, we reverse the August 12 order granting summary

judgment, and affirm the March 13 order dismissing the tort claims.

                                      I.

                                      A.

     Initially,      we   consider   the   August    12   order   dismissing

plaintiffs' civil rights claims.           In doing so, we discern the

pertinent facts from the summary judgment record, extending to

plaintiffs all favorable inferences.          R. 4:46; Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014); Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).



5
  The January 30 order is not contained in the record on appeal,
but is referenced in the March 13 order. The motion was filed on
behalf of all of the State defendants.
6
 The tort claims pertaining to T.A., M.E., and J.S. were dismissed
as part of the January 30, 2013 order and, as such, were not part
of defendants' motion for reconsideration.

                                      3                              A-3730-16T2
       Pertinent    to    this    appeal       are    the    nature    and    timing    of

plaintiffs' reports to the supervisory defendants about Melgar's

misconduct.        In    particular,     plaintiffs          claim    the    supervisory

defendants were deliberately indifferent to their reports, and

that their inaction violated their rights pursuant to the New

Jersey Civil Rights Act, ("NJCRA"), N.J.S.A. 10:6-1 to -2, and the

Federal Civil Rights Act ("FCRA"), 42 U.S.C.A. § 1983. Plaintiffs,

thus,    challenge       the     trial    court's       determination         that     the

supervisory      defendants       are    protected          from   liability     by    the

qualified immunity doctrine pursuant to Pearson v. Callahan, 555

U.S. 223, 231 (2009) (stating the doctrine of qualified immunity,

protects government officials "from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would     have     known.")       (Citation          omitted).         Because        that

determination depends on the substance of plaintiffs' reports and

when they were made, we set forth the facts in the following

chronology.

       According to her deposition testimony, T.A. claimed she first

reported Melgar's inappropriate behavior to Lamoreaux in 2007

because she trusted him, having known the sergeant7 since the 1990s



7
    Lamoreaux was identified as a lieutenant in the present action.

                                           4                                     A-3730-16T2
when he began working at EMCFW.   Lamoreaux referred T.A. to Brown,

the shift sergeant.     T.A. told Brown that Melgar swatted inmates

with rolled up cardboard or paper and wrestled inmates in their

cells.     Brown told T.A. that Melgar was a "young guy" and needed

time to "settle in."

     Following a "destructive" search of her cell on February 28,

2008, T.A. wrote a letter to Hauck, the administrator of EMCFW.

In that correspondence, T.A. suggested officers retaliated against

her for complaining about Melgar's behavior "over the past few

months."     Her letter contains specific references to Melgar's

conduct, including "hitting the various female inmates with rolled

up newspaper, 'playing,' or as some would call it, aggravated

assault."    The letter also details why T.A. did not file a formal

complaint against Melgar:

            Because like every other female prisoner, I
            live in fear of retaliation, I never did write
            any of that up committing it to paper, but I
            did speak to a couple [of sergeants] and
            Captain about it figuring discretion would be
            used   and   I   wouldn't   have   to   suffer
            unnecessarily . . . I have also been told
            repeatedly that since we have no cameras
            inside the units of this particular prison it
            would be my word against his, [and] the
            'playing' would be impossible to prove.

     The February 28 letter is unsigned by T.A.     Hauck certified

that he never received the letter.    Nor was it stamped "received"

or initialed by him, thereby "depart[ing] from procedure."        Had

                                  5                          A-3730-16T2
he received such a letter, he "would have taken immediate action

to have [the allegations] investigated."

     The next month, officers searched and "destroyed" the prison

library where T.A., as librarian, was solely responsible for the

week-long cleanup, including re-alphabetizing the books that had

been "thrown on the floor."    T.A. testified she met with Lamoreaux

and Marafioti, the chief, shortly after that search, and told them

she believed the search of the library, and the previous search

of her cell, were retaliation for her complaints about Melgar.

     In response to Marafioti's inquiry regarding the reason for

retaliation, T.A. testified, "I complained about the ruler game.

He said, ['T]he ruler game, what's the ruler game[?']       Like he

didn't know any of this.      So that means the complaint I made to

Sergeant Brown, he never must have told Chief [Marafioti]."      T.A.

claimed other ranking officers were present at that meeting when

she characterized "the hitting with the ruler and the wrestling .

. . [as] sexual in nature[;] . . . this wasn't just a man playing

around."

     According to Lamoreaux's deposition testimony, he recalled

T.A. and Marafioti speaking after the library incident, but he

could not hear the conversation.      Marafioti testified he had no

recollection of ever having spoken with T.A. or any other inmates

about Melgar.

                                  6                          A-3730-16T2
       In April 2009, inmate R.L. filed an internal complaint against

Melgar.        Hauck    referred    her    allegations      to   SID,   which    then

instituted a formal investigation.8               R.L. alleged Melgar sexually

assaulted her in December 2008.            Specifically, "Melgar entered her

cell . . . put his hand inside her bra and touched her breast."

After a struggle, Melgar attempted to place his hands inside R.L.'s

pants.       Melgar denied the allegations and because there were no

eyewitnesses to the incident, SID concluded there was "no evidence

to support the allegations made by [R.L.]."

       In     June     2010,   plaintiff         R.S.     disclosed     to    prison

psychologist, Nicole DeVita, that while R.S. was in her cell,

Melgar attempted to "hug up on her."                Further, Melgar "picked up

a stick of salami that was in her room and started playing with

it."        R.S. claimed Melgar "plays hard with the other women,

throwing water and everything, but they like it."                       Dr. DeVita

reported R.S.'s allegations to Hauck, who referred the matter to

SID.

       The    following    month,    SID       received   written     reports    from

nineteen North Hall inmates, including plaintiffs R.S., T.A.,

B.C.,    and    T.C.,    attesting    to       Melgar's   good   character.         In


8
  Plaintiffs did not receive SID's investigative report regarding
R.L.'s complaint during the course of discovery.     Instead, the
supervisory defendants provided the report with Hauck's reply
certification in support of their summary judgment motion.

                                           7                                 A-3730-16T2
particular, they described Melgar as "professional, respectful[,]

and    that    he   [ran]     a    good    unit."      Despite   those    positive

assessments, SID continued its investigation.

       SID's interviews of R.S. and T.A. revealed both inmates were

pressured into writing positive reports, fearing retaliation from

Melgar.       R.S. and T.A. separately disclosed Melgar's abuse in

greater detail, including that he grabbed R.S.'s breasts, smacked

her buttocks, and threw ice on inmates while they showered.                        SID

interviewed more than fifteen other North Hall inmates, who largely

corroborated the allegations of abuse reported by R.S. and T.A.

Some   of     the   inmates       also    alleged   Melgar   engaged     in    sexual

intercourse with them.            Melgar was transferred to another facility

in July 2010, suspended without pay in August 2010, and terminated

thereafter.

                                            B.

       When a party appeals from an order granting summary judgment,

our review is de novo and we apply the same standard as the trial

court pursuant to Rule 4:46-2.                   Liberty Surplus Ins. Corp. v.

Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).                       First, we

determine whether the moving party demonstrated there were no

genuine disputes as to material facts, and then we decide whether

the motion judge's application of the law was correct.                   Atl. Mut.

Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31

                                            8                                 A-3730-16T2
(App. Div. 2006).    In doing so, we view the evidence in the light

most favorable to the non-moving party.        Brill, 142 N.J. at 540.

A party may defeat a motion for summary judgment by demonstrating

the   evidential   materials   relied   upon   by   the   moving    party,

considered in light of the applicable burden of proof, raise

sufficient credibility issues "to permit a rational factfinder to

resolve the alleged disputed issue in favor of the non-moving

party."   Id. at 523.   We review the legal conclusions of the trial

court de novo, without any special deference.        Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      To prevail on a claim brought pursuant to 42 U.S.C.A. § 1983,

a plaintiff must first identify "'the person acting under color

of law[]' that has caused the alleged deprivation[,]" and then

"'identify a "right, privilege or immunity" secured to the claimant

by the Constitution or other federal laws of the United States.'"

Rezem Family Assocs. L.P. v. Borough of Millstone, 423 N.J. Super.

103, 114 (App. Div. 2011) (quoting Rivkin v. Dover Twp. Rent

Leveling Bd., 143 N.J. 352, 363 (1996)).         "We see no reason to

apply different elements to a cause of action brought under the

[NJCRA, N.J.S.A. 10:6-2]," as "[t]he New Jersey statute was modeled

after § 1983."     Id. at 115; Gormley v. Wood-El, 218 N.J. 72, 98

(2014); See also Tumpson v. Farina, 218 N.J. 450, 474 (2014) (The



                                  9                                A-3730-16T2
NJCRA "is modeled off of the analogous [FCRA]," and thus cases

applying "Section 1983 may provide guidance in construing our Civil

Rights Act.").

     The   qualified    immunity    doctrine   "balances   two    important

interests – the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform

their duties reasonably."        Pearson, 555 U.S. at 231.       The burden

rests on a defendant to establish he is entitled to such immunity.

See Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d

Cir. 1989).

     To determine whether an official is entitled to qualified

immunity, courts apply a two-prong test.        Pearson, 555 U.S. at 232

(citation omitted); Ramos v. Flowers, 429 N.J. Super. 13, 27-28

(App. Div. 2012).      The first "prong asks whether '[t]aken in the

light most favorable to the party asserting the injury, . . . the

facts alleged show the officer's conduct violated a constitutional

right[.]'"    Ramos, 429 N.J. Super. at 28 (alterations in original)

(citation omitted). The inquiry under the second prong is "whether

the right was 'clearly established' at the time of defendant's

alleged misconduct."     Ibid.     (quoting Pearson, 555 U.S. at 232).

"For a right to be clearly established, '[t]he contours of the

right must be sufficiently clear that a reasonable official would

                                    10                              A-3730-16T2
understand that what he is doing violates that right.'"                     Gormley,

218 N.J. at 113 (alteration in original) (citation omitted).

      Where,    as    here,       plaintiffs     claim     an   Eighth     Amendment

violation for a supervisor's inaction relevant to prong one, they

must demonstrate "'(1) the deprivation alleged [is] objectively,

sufficiently     serious;'        and   (2)    the   'prison    official    [had]    a

sufficiently culpable state of mind.'"                Beers-Capitol v. Whetzel,

256 F.3d 120, 125 (3d Cir. 2001) (quoting Farmer v. Brennan, 511

U.S. 825, 834 (1994)).            "In prison conditions cases, 'that state

of mind is one of "deliberate indifference" to inmate health or

safety.'"      Ibid. (quoting Farmer, 511 U.S. at 834).                  Deliberate

indifference is a subjective standard requiring that the prison

official "must actually have known or been aware of the excessive

risk to inmate safety."            Ibid.       Thus, "a defendant cannot have

qualified      immunity      if   she    was    deliberately       indifferent;      a

reasonable [prison official] could not believe that her actions

comported with clearly established law while also believing that

there is an excessive risk to the plaintiffs and failing to

adequately respond to that risk."               Id. at 142 n.15.

      "Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration

in   the   usual     ways,    including        inference    from    circumstantial

evidence . . . and a factfinder may conclude that a prison official

                                         11                                  A-3730-16T2
knew of a substantial risk from the very fact that the risk was

obvious."     Farmer, 511 U.S. at 842 (emphasis added) (citations

omitted).     "For example, if     . . . the circumstances suggest that

the    [official]   being   sued    had    been    exposed      to    information

concerning the risk and thus 'must have known' about it, then such

evidence could be sufficient to permit a trier of fact to find

that the [official] had actual knowledge of the risk."                    Id. at

842-43 (emphasis added).

       Here, the trial court invaded the province of the factfinder,

improperly    weighing    the   evidence    in    favor   of    the    non-moving

supervisory defendants.         Specifically, the trial court concluded

plaintiffs' reports describing Melgar's conduct prior to R.S.'s

June 2010 sexual contact disclosure, were not "constitutional

violation[s]" that "set off any warning signs of serious misconduct

or serious risk to the health and safety of the inmates. . . .

[C]ertainly [T.A.] was [not] characterizing these types of things

as something that was a serious threat to the health and safety

of the inmates."    The trial court's analysis is unsupported by the

record and contravenes the summary judgment standard.

       In   particular,   the    trial    court    erroneously        discredited

evidence in the record that could support a factfinder's conclusion

that    the   supervisory   defendants      were    aware      Melgar    posed    a



                                     12                                   A-3730-16T2
substantial risk to the North Hall inmates prior to R.S.'s June

2010 disclosure.     See Farmer, 511 U.S. at 842.           For example, the

trial court concluded T.A.'s aggravated assault reference in her

February 28, 2008 letter was "taken out of context" because most

of the letter concerns "complain[ts] about the destruction of her

room."    However, the letter clearly describes Melgar as "hitting

the various female inmates with rolled up newspaper."              While the

trial    court   recognized     "uninvited       inappropriate   touching     of

somebody, whether it be with a ruler or cardboard or wresting,

would constitute a simple assault so that would certainly qualify

as criminal [conduct]," the court did not consider these acts as

constitutional violations that would pose a "serious risk to the

health and safety of the inmates."           We disagree.

     It    is    well-settled    that     "the    Eighth   Amendment    places

restraints on prison officials, who may not, for example, use

excessive physical force against prisoners . . . and must 'take

reasonable measures to guarantee the safety of the inmates.'")

Farmer, 511 U.S. at 832 (citation omitted); see also N.J. Const.

art. I, ¶ 12.      In light of these legal principles, a factfinder

could conclude that wrestling with prisoners and striking them

with an object, especially where, as here, the guard and inmates

are members of the opposite sex, could trigger Eighth Amendment



                                     13                                A-3730-16T2
protections.    As such, summary judgment was inappropriate on that

basis.

     Moreover,    plaintiffs      have    proffered     evidence    that       four

separate reports were made prior to June 2010, suggesting the

supervisory defendants "had been exposed to information concerning

the risk" to plaintiffs, and "such evidence could be sufficient

to permit a trier of fact to find that the [supervisory defendants]

had actual knowledge of the risk."             Farmer, 511 U.S. at 842.

Because Hauck denied he received T.A.'s letter; Marafioti and

Lamoreaux denied T.A. reported Melgar's misconduct to them; and

Brown    downplayed    Melgar's   conduct    in   his    response    to     T.A.,

plaintiffs'    sworn   statements    and    deposition    testimony       to   the

contrary create genuinely disputed issues of material fact.                    See,

e.g., Shanley & Fischer, P.C. v. Sisselman, 215 N.J. Super. 200,

211-12 (App. Div. 1987) (stating the trial court should not decide

summary judgment motions based on dueling affidavits inasmuch as

there are material facts at issue, including but not limited to

the subjective elements of intent and credibility determinations,

which must be decided by the trier of fact).

     In sum, genuine disputes as to material facts exist with

respect to the timing and nature of plaintiffs' reports to the

supervisory defendants regarding Melgar's misconduct.                 Many of

these disputed facts require credibility determinations by a fact-

                                     14                                   A-3730-16T2
finder.     Brill, 142 N.J. at 523.      If, as plaintiffs assert, they

reported misconduct that violates the Eighth Amendment to the

supervisory defendants prior to June 2010, then the doctrine of

qualified     immunity   would   not     extend   to   those   defendants.

Accordingly, we reverse the order granting summary judgment to the

supervisory defendants.

                                   II.

                                   A.

       We next consider the appeal of plaintiffs T.C., B.C., and

R.S. from the trial court's order dismissing their tort claims for

lack of proper notice.     In setting forth the facts and procedural

history from the record pertaining to that motion, plaintiffs are

not entitled to the same benefit of favorable inferences as their

civil rights claims.     Cf. R. 4:46.

       In May 2011, T.C., B.C., R.S., and another inmate9 attempted

to file a class action lawsuit, asserting various claims including,

violations of the TCA.      Those plaintiffs also sought permission

to file a late notice of tort claim pursuant to N.J.S.A. 59:8-8.

Because the complaint was not signed by an attorney, it was deemed

deficient pursuant to Rule 1:21-1.           Accordingly, the Hunterdon

County Clerk stamped the submission "received" but not "filed."



9
    The fourth plaintiff, F.D., is not a party to this appeal.

                                   15                              A-3730-16T2
    B.C. claims she resubmitted the complaint in June 2011.

Apparently,    the   clerk's      office        did   not   receive      the    refiled

complaint and requested resubmission.                  In September 2011, B.C.

again   attempted    to    file      the   complaint,       but    did   not    receive

confirmation from the clerk's office that it was filed.                         In July

2012, plaintiffs filed a motion seeking leave to file their TCA

notice of claim as within time.                 Three months later, they filed

their first amended complaint.

    In November 2012, the first motion judge denied plaintiffs'

motion as to T.A., M.E., and J.S., dismissing their tort claims.

Following a hearing, the judge granted plaintiffs' motion as to

the claims filed by T.C., B.C., and R.S.                      As such, the judge

determined "there [was] some kind of service at the very end of

May 2011" as to those plaintiffs.

    In March 2013, a second amended complaint was filed, by

counsel, on behalf of the present plaintiffs.                     Defendants filed a

motion for reconsideration of the first motion judge's order,

which   was   granted     by   the    second     motion     judge.       This    appeal

followed.

    On appeal, plaintiffs contend their motion to deem their

notice of tort claim timely was filed within one year of accrual

of their claim.         They argue the first motion judge correctly

determined their May 2011 complaint and motion should be deemed,

                                           16                                   A-3730-16T2
"filed" in addition to "received," thereby satisfying the one-year

deadline.     We disagree.

                                  B.

     A trial court's order on a motion for reconsideration will

not be set aside unless shown to be a mistaken exercise of

discretion.    Granata v. Broderick, 446 N.J. Super. 449, 468 (App.

Div. 2016) (citing Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462

(App. Div. 2002)).      Reconsideration should only be granted in

those cases in which the court had based its decision "upon a

palpably incorrect or irrational basis," or did not "consider, or

failed to appreciate the significance of probative, competent

evidence."     Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super.

392, 401 (Ch. Div. 1990)).

     The TCA requires a notice of claim against a public entity

to be filed within ninety days after the accrual of a cause of

action.     N.J.S.A. 59:8-8.   Generally, a claimant does not timely

file a notice of claim, the claim is "forever barred."      N.J.S.A.

59:8-8; see also J.P. v. Smith, 444 N.J. Super. 507, 529 (App.

Div. 2016) (finding failure to timely file a notice of tort claim

"constitutes an absolute bar to recovery").

     A notice of claim may be filed beyond the ninety-day time

period if leave is obtained from the Superior Court "within one

year after the accrual of [the] claim provided that the public

                                  17                         A-3730-16T2
entity . . . has not been substantially prejudiced thereby."

N.J.S.A. 59:8-9.        The motion must be "supported by affidavits

based upon personal knowledge of the affiant showing sufficient

reasons constituting extraordinary circumstances for [the] failure

to file [a timely] notice of claim."                N.J.S.A. 59:8-9; D.D. v.

Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 147 (2013).

"After the one-year limitation has passed, 'the court is without

authority to relieve a plaintiff from his [or her] failure to have

filed a notice of claim, and a consequent action at law must

fail.'"    Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529,

532-33 (App. Div. 1989) (quoting Speer v. Armstrong, 168 N.J.

Super. 251, 255-56 (App. Div. 1979)).

     Here, it is undisputed that plaintiffs' cause of action

accrued no later than June 24, 2010, i.e., Melgar's last day at

EMCFW    prior    to   his     transfer   to    another    facility.      Although

plaintiffs attempted to file their complaint and notice of claim

within    time,   their      submission    was   procedurally    defective      and

properly    rejected      by    the   clerk's    office.     Thus,     plaintiffs'

submission was received, but it was not filed. Instead, the notice

of claim was not filed until July 23, 2012, more than two years

after the accrual of plaintiffs' claim.

     Relying on Fuller v. Rutgers, State University, 154 N.J.

Super. 420, 423 (App. Div. 1977), the second motion judge, aptly

                                          18                               A-3730-16T2
determined, if the motion to file a late notice of claim is not

"timely filed within one-year, the trial court . . . does [not]

have    jurisdiction   [to   exercise   discretion]."   Accordingly,

plaintiffs failed to satisfy the strict mandates of N.J.S.A.

59:8-9.

       Having fully considered plaintiffs' claims in light of the

applicable law, we are satisfied the trial judge did not abuse his

discretion in granting defendants' motion for reconsideration.      As

such, the tort claims filed by T.C., B.C., and R.S. were properly

dismissed.

       Affirmed in part; reversed and remanded in part.   We do not

retain jurisdiction.




                                  19                         A-3730-16T2
