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Israel v. Smith

United States District Court, D. New Jersey

April 17, 2018

BARSOUM S. ISRAEL, Plaintiff,
v.
LIEUTENANT DEAN R. SMITH, et. al, Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on Defendants Township of Freehold, Chief Ernest Schriefer, and Lieutenant Dean Smith's motion in limine to preclude any evidence or testimony relating to excessive force that purportedly occurred while Plaintiff Barsoum S. Israel was in custody at the police station. Plaintiff opposes the motion, contending that the allegations arising from the police station were pleaded in the original complaint. For the reasons discussed herein, Defendants' motion is granted.

         I.

         This case involves allegations of excessive force by Lt. Smith. On December 31, 2012, Plaintiff filed his Original Complaint in this Court, asserting, among other things, federal civil rights claims under 42 U.S.C. § 1983 for excessive force. (ECF No. 2). Most of the allegations in the Complaint concern the facts surrounding the use of force by Lt. Smith when he stopped Mr. Israel's car for a traffic violation. In the Original Complaint, there is one paragraph about the use of force at the police station. It reads:

As if such unnecessary and excessive force were not enough, at the police station, Officer Smith would not so much as allow the elderly Mr. Israel to sit down. Instead, Officer Smith increased Mr. Israel's pain by ignoring Mr. Israel's pleas that he was in great distress, and by dragging Mr. Israel around.

(Id. at ¶ 32). On March 29, 2014, Plaintiff moved to amend his Complaint, and to assert that Lt. Smith used excessive force at the police station. (ECF No. 14). Specifically, in his Proposed Amended Complaint, Plaintiff alleged the following:

At the police station, two other police office[r]s joined Officer Smith in battering Mr. Israel; they shoved him violently against the wall, causing his head and his body to collide with the wall several times, then forcibly removed Mr. Israel's belt and shoes.

(ECF No. 14-3 at ¶ 36). In a written opinion issued on October 7, 2014, Magistrate Judge Goodman denied Plaintiffs motion to amend, explaining:

This allegation is entirely new and apparently implicates individuals that are not parties to this action. Plaintiff has given no reason why these additional facts were not in the original Complaint or why they should be allowed to be added at this late date. The Court therefore finds undue delay with regard to the motion to add these facts, and this portion of Plaintiff s request to amend his Complaint will therefore also be denied.

(ECF No. 23 at 15).

         On November 3, 2014, Plaintiff filed a notice of appeal directly with the Third Circuit, challenging Magistrate Goodman's decision. (ECF No. 26). The Third Circuit summarily dismissed the appeal for lack of appellate jurisdiction, since the magistrate's decision was not first appealed to the District Court. (ECF No. 36). Thereafter, Plaintiff did not appeal Magistrate Goodman's decision to this Court. As such, the Complaint was never amended. The case proceeded through discovery. During the preparation of a proposed form of the Final Pretrial Order, Plaintiff re-asserted the Police station incident. Shortly afterward, Magistrate Goodman signed the Order. In the "Plaintiffs Contested Facts" section of the Final Pretrial Order, Plaintiff intends to prove the following at trial:

Mr. Israel was taken from the bench, stripped of his jacket and shoes, shoved into the brick wall opposite cell #1, and again beaten by Lt. Smith and two other officers, before being placed in cell #1.

(ECF No. 93, Final Pretrial Order, at ΒΆ 80). Defendants move to strike this paragraph as being beyond the cause of action set forth in the complaint, and to bar any testimony relating to any excessive force at the ...


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