United States District Court, D. New Jersey
BARSOUM S. ISRAEL, Plaintiff,
LIEUTENANT DEAN R. SMITH, et. al, Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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).
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 ¶ 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 ...