NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

DANIEL J. FRIED,

Plaintiff, Civil No. 11-cv-2578 (RMB/KMW)

v. OPINION

STATE TROOPER SR TETZLAFF, 

STATE TROOPER BP OLIVER, AND 

STATE TROOPER PE BROWN, 

Defendants.

APPEARANCES: 

Aaron Freiwald

Katherine Robinson

Layser & Freiwald, P.C.

450 Sentry Parkway

Blue Bell, PA 19422

Attorneys for Plaintiff 

Michael Engallena

Vincent Rizzo, Jr.

State of New Jersey

Office of the Attorney General

RJ Hughes Justice Complex 

25 Market Street

Trenton, NJ 08625

Attorneys for Defendants

BUMB, United States District Judge:

I. Introduction & Procedural History: 

Plaintiff, Daniel Fried, has asserted claims for excessive 

force pursuant to 42 U.S.C. § 1983 and related state law claims 

for assault and battery. This matter comes before the Court 

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following oral argument on the parties’ respective in limine 

motions, filed in anticipation of a trial set to begin on June 

11, 2014. Prior to the hearing on the motions in limine, this 

Court decided a motion for summary judgment filed by Defendants

New Jersey State Troopers Brown and Tetzlaff. The Court 

granted, in relevant part, summary judgment in favor of 

Defendant Tetzlaff on Plaintiff’s excessive force claim on the 

basis of qualified immunity. [Docket No. 103].1 This Court found 

qualified immunity inapplicable as to Trooper Brown and denied 

summary judgment on the excessive force claim asserted against 

him. 

During a June 5, 2014 oral argument on the pending in 

limine motions, it became clear that there was general confusion 

as to the exact nature of Plaintiff’s excessive force claim with 

respect to both Trooper Brown and Trooper Tetzlaff. To resolve 

the resulting confusion, this Court explored the breadth of 

Plaintiff’s claim during that hearing and requested that the 

parties submit supplemental briefs to clarify their respective 

positions on Plaintiff’s excessive force claim. The nature of 

that confusion, and how it developed, is set forth on the 

1 For reasons discussed in the Court’s prior Opinion, this 

Court granted summary judgment in favor of both Trooper Brown 

and Trooper Tetzlaff as to Plaintiff’s § 1983 claims for 

deliberate indifference to a serious medical need and pursuant 

to a state created danger theory. This ruling is not at issue 

in this Opinion and will not be discussed. 

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record. Suffice it to say that Plaintiff always believed he was 

articulating a broader allegation of excessive force against 

both Defendants. Defendants viewed the allegation more 

narrowly. 

For the reasons set forth below, this Court finds that it 

must reconsider its determination that Trooper Tetzlaff is 

entitled to qualified immunity on Plaintiff’s excessive force 

claim because “[a] decision as to qualified immunity is 

‘premature when there are unresolved disputes of historical 

facts relevant to the immunity analysis.’” Phillips v. County 

of Allegheny, 515 F.3d 224, 242 (3d Cir. 2008)(quoting Curley v. 

Klem, 298 F.3d 271, 277-78 (3d Cir. 2002)). As will be 

discussed, oral argument on the pending motions in limine 

clarified that there are sufficient disputes of historical fact 

that must be resolved by a jury before this Court can make a 

proper determination as to Trooper Tetzlaff’s assertion of 

qualified immunity. See Grooms v. City of Philadelphia, No. 10-

5178, 2012 U.S. Dist. LEXIS 143247 at *12 (E.D. Pa. Sept. 28, 

2012)(“determining what would have been clear to a reasonable 

officer in [the] situation requires a clear view of the 

situation.”). 

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“A court may reconsider its prior decisions (accounting for 

the law-of-the case doctrine)2 so long as it explains the 

reasoning behind its decision and takes the appropriate steps to 

ensure that the parties are not prejudiced by reliance on its 

prior ruling.” Peters v. David, No. 07-2210, 2013 U.S. Dist. 

LEXIS 132106, at *6-7 (D.N.J. Sept. 16, 2013)(reappraising all 

submissions of record and recognizing that summary judgment 

should be granted as to federal claim). This Court has 

reexamined the record at length and will explain its reasoning

behind revisiting the summary judgment decision below. See

DeFranco v. Wolfe, 387 Fed. Appx. 147, 156 (3d Cir. 2010)

(finding that the district court adequately explained its 

reasoning by “looking to applicable law, hearing transcripts, 

affidavits, documentary evidence, and its own prior rulings.”).

Moreover, because this reconsideration has taken place 

immediately following oral argument clarifying the factual basis 

for Plaintiff’s averments, but prior to decision on the parties’

2 “[W]e note that the law of the case doctrine is ‘an 

amorphous concept’ that ‘directs a court's discretion’ but ‘does 

not limit [its] power.’” Greene v. V.I. Water & Power Auth., 

2014 U.S. App. LEXIS 2574, at *10-11, n. 7 (3d Cir. Feb. 11, 

2014)(quoting Pepper v. United States, 131 S. Ct. 1229, 1250, 

179 L. Ed. 2d 196 (2011) (citation omitted) (internal quotation 

marks omitted). “‘Accordingly, the doctrine does not apply if 

the court is convinced,’ as the court appears to have been 

convinced here, ‘that its prior decision is clearly erroneous 

and would work a manifest injustice.’” Id. (quoting Pepper, 1341 

S. Ct. at 1250) (citations omitted) (internal quotation marks 

and brackets omitted).

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motions in limine or the commencement of trial, this Court finds 

that the parties have not been prejudiced by its prior ruling. 

See Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997)(finding 

prejudice where a pre-trial ruling was only reversed “after

trial on the same record.”) (emphasis in original). This Court 

has also offered the parties an opportunity to submit additional 

briefing on the issue prior to rendering this decision. 

Finally, this Court has postponed the trial. 

 

II. Relevant Factual Background: 

A) Factual Background on Summary Judgment 

This Court will briefly set forth the facts as considered 

in this Court’s prior summary judgment decision with respect to 

Plaintiff’s excessive force claim.

The incidents giving rise to Plaintiff’s claims took place 

on the evening of November 20, 2010 on New Jersey Route 72 West. 

Defs.’ SMF ¶ 1; Amended Complaint (Amend. Compl. ¶ 13 & 23).

Plaintiff has suffered from diabetes since the age of eight and 

takes insulin for his condition. While driving, Plaintiff began 

to experience a diabetic episode and became “less than lucid 

very suddenly.” Fried Dep. at 77:19-20. 

The Plaintiff was unequivocal in his deposition that he has 

no recollection whatsoever of his interaction with the Troopers

from the time of his initial encounter with them until he was 

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placed in the back of the police car. Pl.’s Dep. 81:14-82:10; 

91:14-18.3 Therefore, the Court took the facts in its summary 

judgment motion from the accounts provided by the troopers on 

scene, from their depositions, and the Mobile Video Recorder

(“MVR”)4 in Trooper Tetzlaff’s car, which picked up portions of 

the encounter.5

Trooper Brown was the first officer to arrive on the scene 

and he was responding to an “erratic operator” call at 

approximately 6:56 p.m. Defs.’ Ex. B, CAD Abstract,6 and Ex. E, 

Deposition of Trooper Paul Brown (“Brown Dep.”) 37:12-20; Pl.’s 

Resp. SMF 26-32. When Brown arrived, Plaintiff’s vehicle was 

already pulled over to the side of the road. Brown Dep. 37:21-

38:5; Pl.’s Resp. SMF 26-32. Plaintiff appeared to be nearly 

falling asleep and, as a result, Brown suspected that Plaintiff 

might be having a medical issue or might be intoxicated, 

although he did not smell alcohol. Id. at 47:2-11; 48:23-49:10; 

52:17-20; Pl.’s Resp. SMF 26-32. 

3 See Pl.’s Dep. 82:6-10 “Q: You don’t remember anything 

that happened between you and the troopers before you were in 

the backseat of the troop car trying to explain your situation 

to them? A: No.”).

4 The MVR tape was attached to Defendants’ motion as Exhibit 

M. 

5 Trooper Brown’s MVR was not recording properly. 

6 The CAD records time in military format – i.e., 18:56 p.m. 

- converted here to standard format for ease. 

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Based on his observations, Brown asked whether Plaintiff 

wanted him to call EMS and Plaintiff responded - “No.” Id. at 

62:24-63:5. During the interaction, it became clear that 

Trooper Tetzlaff was en route. Id. at 65:1-11. Brown asked 

Plaintiff to produce his driver’s license but Plaintiff did not 

respond. Id. at 68:4-22. Because of Plaintiff’s demeanor and 

because Brown felt it was safer, he asked Plaintiff to exit the 

vehicle. Id. at 71:20-72:10. Brown continued to assess the 

situation and question Plaintiff outside of the vehicle; he 

asked Plaintiff whether he had diabetes because he considered a 

diabetic problem a possibility. Id. at 83:6-84:8. In response, 

Plaintiff stated, “Yes. You didn’t know that?” – and when asked 

if he took insulin, Plaintiff said “No. Yes. No. I don’t have 

diabetes. I told you that.” Id. at 83:6-84:12.

Trooper Brown testified that after this exchange, he 

considered calling EMS but did not make the call at that point 

because:

I still wasn’t fully 100 percent sure of whether or not he 

was having a medical issue or if he was on some type of 

narcotic or whatever, but I also knew Trooper Tetzlaff was 

en route and I felt safer knowing that I was going to have 

backup there to help determine what was going on.

 

Id. at 92:10-93:8. Plaintiff submitted the report of Daniel 

Lorber, MD, an endocrinologist, in support of his contention 

that his behavior at the scene is consistent with the signs of 

hypoglycemia. Pl.’s Ex. F, Lorber Report. At his deposition, 

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Dr. Lorber opined that the manifestations of hypoglycemia is 

“tremendously variable and individual.” Defs.’ Ex. G, Lorber 

Dep. 38:1-6. 

Trooper Tetzlaff then arrived at the scene at approximately 

7:07 p.m. Defs.’ Ex. B. Tetzlaff’s MVR was functioning and 

captured audio of the remaining encounter.7 After his arrival, 

Brown only told Tetzlaff that he thought Plaintiff might be 

drunk and was giving him the “runaround” because Plaintiff was 

not answering his questions. Id. at 104:20-24. Brown did not 

say anything to Tetzlaff about diabetes. Defs.’ Ex. F, 

Deposition of Trooper Tetzlaff (“Tetzlaff Dep.”) at 57:19-22. 

When Tetzlaff approached Plaintiff, Plaintiff was standing still 

towards the front of his van and Tetzlaff asked Plaintiff what 

was going on. Tetzlaff Dep. at 77:14-78:9. Plaintiff began 

walking towards Tetzlaff, who asked Plaintiff to take his hands 

out of his pockets to which the Plaintiff responded, “Why?” Id.

at 84:10-19. Tetzlaff responded “Because you’re making me 

nervous,” and Plaintiff responded “Well you’re making me 

nervous.” Id. at 84:15-22. Plaintiff then took his hands out 

of his pockets and then put them back in and started to walk 

towards Tetzlaff. Id. 

7 The video was also functioning but the camera was not 

pointed in the direction of the interaction. 

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At this point, Tetzlaff grabbed Plaintiff by his arms in 

order to gain control of his hands for fear that he was going to 

“secrete” [sic] or pull out a weapon. Id. at 89:11-16. Because 

Plaintiff had his hands in his pockets and “wouldn’t listen to 

him,” Tetzlaff stated that he grabbed Plaintiff’s arm, spun his 

body counter clockwise and brought Plaintiff’s left arm towards 

him. Id. at 130:7-13. Tetzlaff states that the Plaintiff 

lunged forward and pulled Tetzlaff on top of him. Id. at

133:15-134:4. Tetzlaff put his foot in front of the Plaintiff 

to trip him and bring him to the ground. Id. at 135:11-15. Per 

the MVR tape, one of the officers can be heard during this 

struggle saying “stop resisting” and Plaintiff can be heard 

screaming. Defs.’ Ex. M. As the struggle progressed, Trooper 

Brown used his baton to strike the Plaintiff and gain control. 

Tetzlaff Dep. at 139:18-21. Brown testified he struck Plaintiff 

once in the leg, Brown Dep. 138:8-11, though Tetzlaff testified 

he thought it was “more than once.” Tetzlaff Dep. 140:8-13. 

In response to Tetzlaff’s and Brown’s version of events, 

Plaintiff contends that there were “no bulges in Mr. Fried’s 

pockets that could have been a weapon.” Pl.’s Br. at p. 11. 

Plaintiff also disputes that he pulled Tetzlaff on top of him, 

and instead refers to a section on the MVR where Tetzlaff can be 

heard stating, “He went over like a house of cards when I jumped 

on him.” Defs.’ Ex. M, Video 6. Plaintiff can also be heard

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on the MVR tape during the arrest saying, “You’re hurting my 

arm” and screaming. Id.

Once the Troopers secured the Plaintiff, he was read his 

Miranda rights and brought to the back of Tetzlaff’s vehicle. 

Trooper Brown notified dispatch that Plaintiff had been placed 

under arrest at approximately 7:10 p.m. Defs.’ Ex. B. 

Plaintiff contends that as a result of this incident he 

sustained cuts on his face, arms and chest and that his left 

wrist was broken. Fried Dep. 99:20-101:18. Plaintiff provides 

the report of Dr. Sanford Davne, dated November 20, 2012, in 

support of his contention that his wrist was fractured during 

his interaction with the police on November 20, 2010. Pl.’s Ex. 

E. This report refers to records from Springfield Hospital from 

November 21, 2010, showing a fracture, but Plaintiff has not 

provided this Court with the Springfield Hospital record. For 

purposes of the motion for summary judgment, the Court 

considered that Plaintiff’s left wrist was broken during the 

course of the arrest. 

B) Summary Judgment Decision & Subsequent Clarifications

After hearing oral argument of the parties on the motion 

for summary judgment, and based on the above facts as contained 

in the parties’ briefs, this Court reviewed Defendants’ motion 

for summary judgment on the Plaintiff’s 42 U.S.C. § 1983 claims

for excessive force and related state common law claims for 

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assault and battery. At that juncture, this Court, based on the 

framing of the issues by the Defendants and the response from 

the Plaintiff during oral argument, understood that the only

force Plaintiff was alleging that the officers applied was 

Tetzlaff taking Plaintiff to the ground during the course of the 

arrest, which resulted in various scrapes and the breaking of 

Plaintiff’s wrist, and Trooper Brown applying baton strikes to 

the Plaintiff an unspecified number of times. 

As a result, this Court denied a grant of qualified 

immunity and summary judgment as to Trooper Brown finding, that 

based on Plaintiff’s version of the facts, that there was

sufficient evidence such that a reasonable jury could find that 

his actions constituted excessive force under the circumstances. 

With respect to Trooper Tetzlaff, this Court found that he was 

entitled to qualified immunity. This decision hinged, in large 

part, on this Court’s understanding (which appears from the 

briefing to have been the shared understanding of Defendants) 

that the only force alleged to have been applied by Tetzlaff was 

taking Plaintiff to the ground during the arrest, which, 

Plaintiff alleges, resulted in his left wrist being broken and 

lacerations. [Docket No. 103 at 23-24]; see also June 5, 2014, 

Hearing Tr. 55:3-6 (Mr. Rizzo: “for three years that we’ve been 

doing this it has consisted of his left arm broke when he went 

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to the ground and Trooper Brown hit him in the leg with [a] 

baton. That’s it.”). 

During oral argument on the motions in limine, however, 

Plaintiff clarified that this was not the set of facts Plaintiff 

relied on in support of his claims. Instead, Plaintiff contends 

that he was “beaten” by the officers and that “[a] jury should 

decide how to interpret Plaintiff’s screams and wails on Trooper 

Tetlzaff’s MVR tape, [and] . . . could conclude that Plaintiff’s 

screams were due to Trooper Tetzlaff and Trooper Brown’s beating 

and use of excessive force upon Plaintiff.” [Docket No. 138, 

Plaintiff’s Supplemental Submission, at 3]; see also June 5, 

2014, Hearing Tr. 33:22-24 (“The MVR audio tape will show that 

Mr. Fried was wailing for well over a minute, wailing and 

screaming in pain.”). 

In light of Plaintiff’s assertions, this Court has rereviewed the parties’ original submissions on summary judgment, 

the transcripts of both the summary judgment oral argument from 

March 13, 2014 and the in limine hearing on June 5, 2014, and 

the supplemental submissions of the parties requested by this 

Court. In doing so, it becomes clear that the Defendants, 

narrowly framing the claim, did not understand the exact nature 

of Plaintiff’s excessive force claim and Plaintiff failed to 

adequately clarify the record at various times. Based on the 

statements at oral argument and the submissions of the parties, 

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it is now evident that Plaintiff has alleged and has set forth 

evidence to support his contention that the extent of the force 

applied during the struggle between the Troopers and Plaintiff

is unclear. That is not to say that Plaintiff is now presenting 

an entirely new theory; the record contains the elements 

supporting the Plaintiff’s now clarified assertion. See e.g., 

Pl.’s Summary Judgment Opp. Br. at 16 (“The MVR audio tape also 

clearly and disturbingly documents Mr. Fried screaming in terror 

and pain as he was being beaten by Trooper Tetzlaff and Trooper 

Brown.); March 13, 2014, Hearing Tr. at 46:21-47:11 (Mr. 

Freiwald: “I think that as to Trooper Tetzlaff, what raises a 

jury question as to his own conduct is the amount of force that 

he did use even given what preceded . . . with Trooper Brown. . 

.based on the audio, which is pretty graphic, one might conclude 

that there were additional strikes in connection with this 

exchange.”); Plaintiff’s Sur-Reply at n. 1 [Docket No. 100] 

(“There is ample other evidence to create substantial doubt as 

to Defendants’ story on crucial points. The jury must be 

permitted to serve its role as a fact finder[,]” and “[t]he jury 

should watch and listen to the MVR and draw their own inferences 

from it.”). 

This Court (and the Defendants) previously misconstrued the 

scope and extent of Plaintiff’s allegations. This Court now 

properly understands the Plaintiff to be asserting that the 

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extent of the force applied during the “struggle” between the 

Troopers and the Plaintiff is unsettled beyond the mere question 

of the number of baton strikes. Understanding the allegations 

correctly and having reviewed all the submissions, this Court 

finds that it must revisit its decision on summary judgment. 

III. Standard: 

Summary judgment shall be granted if “the movant shows that 

there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). A fact is “material” if it will “affect the 

outcome of the suit under the governing law . . . .” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is 

“genuine” if it could lead a “reasonable jury [to] return a 

verdict for the nonmoving party.” Id. When deciding the 

existence of a genuine dispute of material fact, a court’s role 

is not to weigh the evidence: all reasonable “inferences, 

doubts, and issues of credibility should be resolved against the 

moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 

n.2 (3d Cir. 1983). 

However, a mere “scintilla of evidence,” without more, will 

not give rise to a genuine dispute for trial. Anderson, 477 

U.S. at 252. Further, a court does not have to adopt the 

version of facts asserted by the nonmoving party if those facts 

are “utterly discredited by the record [so] that no reasonable 

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jury” could believe them. Scott v. Harris, 550 U.S. 373, 380 

(2007). In the face of such evidence, summary judgment is still 

appropriate “where the record . . . could not lead a rational 

trier of fact to find for the nonmoving party . . . .” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). 

The movant “always bears the initial responsibility of 

informing the district court of the basis for its motion, and 

identifying those portions of ‘the pleadings, depositions, 

answers to interrogatories, and admissions on file, together 

with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 

56(c)). Then, “when a properly supported motion for summary 

judgment [has been] made, the adverse party ‘must set forth 

specific facts showing that there is a genuine issue for 

trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 

56(e)). The non-movant’s burden is rigorous: it “must point to 

concrete evidence in the record”; mere allegations, conclusions, 

conjecture, and speculation will not defeat summary judgment. 

Orsatte v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);

Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)(citing 

Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228 

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(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat 

summary judgment.”).

IV. Analysis:

A) Excessive Force

Under both federal and New Jersey law, a claim that 

excessive force was used during an arrest requires that a 

plaintiff show that a law enforcement officer used force that 

was unreasonable under the circumstances. Graham v. Connor, 490 

U.S. 386, 396 (1989)(federal law); Hanson v. United States, 712 

F. Supp. 2d 321, 329-30 (D.N.J. 2010)(New Jersey state law). 

And, in determining the reasonableness of force used, courts 

balance the government interests at stake against the intrusion 

on the individual’s Fourth Amendment rights. Graham, 490 U.S. 

at 396; Hanson, 712 F. Supp. 2d at 330 (indicating that New 

Jersey courts look to the same factors as laid out in Graham, 

490 U.S. at 396). This analysis requires careful consideration 

of “the facts and circumstances of each particular case, 

including the severity of the crime at issue, whether the 

subject poses an immediate threat to the safety of the officer 

or others, and whether he is actively resisting arrest or 

attempting to evade arrest by flight.” Graham, 490 U.S. at 396 

(citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). 

Courts also consider “the possibility that the person 

subject to the police action [was] themsel[f] violent or 

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dangerous, the duration of the action, whether the action takes 

place in the context of effecting an arrest, the possibility 

that the suspect may be armed, and the number of persons with 

whom the police officer must contend at one time.” Rivas v. 

City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004)(internal 

quotations and citations omitted). In the Third Circuit, courts 

take into account “all of the relevant facts and circumstances 

leading up to the time that the officers allegedly used 

excessive force.” Rivas, 365 F.3d at 198 (citing Abraham v. 

Raso, 183 F.3d 279, 291 (3d Cir. 1999)).

Reasonableness “must be judged from the perspective of a 

reasonable officer on the scene, rather than with the 20/20 

vision of hindsight,” since “police officers are often forced to 

make split-second judgments in circumstances that are tense, 

uncertain, and rapidly evolving.” Ryburn v. Huff, 132 S. Ct. 

987, 992 (Jan. 23, 2012)(quoting Graham, 490 U.S. at 396–97). 

The Court must therefore conduct its balancing test in light of 

the facts that were available to the officer at the time he 

acted. Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007)(citing 

Maryland v. Garrison, 480 U.S. 79, 85 (1987)). 

To determine whether an officer is entitled to qualified 

immunity from suit, courts ask two questions: "(1) whether the 

officer violated a constitutional right," and "(2) whether the 

right was clearly established, such that it would have been 

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clear to a reasonable officer that his conduct was unlawful in 

the situation he confronted." Lamont v. N.J., 637 F.3d 177, 182 

(3d Cir. 2011)(quoting Saucier v. Katz, 533 U.S. 194, 201-02, 

(2001)(internal quotations and brackets omitted)). The officer 

seeking to invoke qualified immunity has the burden of proving 

its applicability. See Reedy v. Evanson, 615 F.3d 197, 223 (3d 

Cir. 2010).

“Although qualified immunity is a question of law 

determined by the Court, when qualified immunity depends on 

disputed issues of fact, those issues must be determined by a 

jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d 

Cir. 2006). Plaintiff has now elucidated for this Court that he 

contends that more happened during the struggle than him being 

taking to the ground by Tetzlaff and the baton strikes applied 

by Brown, as discussed above. As alleged by Plaintiff, it is 

not apparent from the MVR tape what happened during the struggle 

between Plaintiff and the Troopers. This Court agrees --

“[t]hese allegations, none of which are either established or 

definitively refuted by the [MVR] videotapes, present issues of 

material fact that must be resolved by a jury.” Green v. New 

Jersey State Police, 246 Fed. Appx. 158, 161 (3d Cir. 2007); see

Patterson v. City of Wildwood, 354 Fed. Appx. 695 (3d Cir. 

2009)(finding that a jury might conclude that a videotape was 

inconsistent with or give rise to different inferences where the 

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videotape in question did not portray the actual incident); 

Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 

2003)(stating that where a decedent was unable to testify that 

the court may not accept self-serving account by officer but 

must also look to circumstantial evidence that, if believed, 

could discredit the officer’s story). 

Because a jury must resolve the issues of fact with respect 

to what happened during the struggle, this Court cannot render a 

decision on qualified immunity as to Trooper Tetzlaff at this 

time.8 See Prince v. Aiellos, No. 09-5429, 2013 U.S. Dist. 

LEXIS 179756, at *20 (D.N.J. Dec. 20, 2013)(“the Court has 

concluded that there are material issues of fact in dispute as 

to whether Defendant's actions . . . violated Plaintiff's 

constitutional rights. It naturally follows that the Court 

cannot determine, as a matter of law, whether a constitutional 

violation has occurred for purposes of assessing Defendant's 

entitlement to qualified immunity until such time as the 

foregoing factual issues are resolved by the jury.”). Once the 

8 In their supplemental submission, [Docket No. 139], the 

Defendants append and rely upon evidence, including a 

certification dated June 10, 2014, not previously submitted to 

this Court. To the extent consideration of this certification 

would even be proper, which is doubtful in light of the fact 

that such a certification would have been most properly 

presented to this Court along with the original motion for 

summary judgment, this Court nevertheless finds that the MVR 

tape has created a material dispute of fact that must be 

resolved by the jury. 

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jury has made the requisite factual determinations, this Court 

can proceed with the qualified immunity analysis. See Boardman 

v. Riverside Township, No. 04-5779, 2007 U.S. Dist. LEXIS 51411, 

at *11 (D.N.J. July 13, 2007)(“this Court is unable to resolve 

the qualified immunity question without resolution of the 

underlying disputed factual issue of whether Plaintiff fled, 

resisted arrest, acted violently or whether he was actually 

struck repeatedly by [the officer.]”).9

The Defendants are correct that changes to the Joint Final 

Pretrial order must be analyzed under the manifest injustice 

standard. Fed. R. Civ. P. 16(e). "Four criteria guide courts in 

deciding whether or not to modify a final pretrial order: (1) 

the prejudice or surprise in fact to the opposing party, (2) the 

ability of the party to cure the prejudice, (3) the extent of 

disruption of the orderly and efficient trial of the case, and 

(4) the bad faith or willfulness of the non-compliance." Jacob 

v. Nat'l R.R. Passenger Corp., 63 Fed. Appx. 610, 612 (3d Cir. 

9 Because of the issues of fact that must be determined by a 

jury prior to a determination on Trooper Tetzlaff’s assertion of 

qualified immunity, this decision is not an immediately 

appealable collateral order. Barton v. Curtis, 497 F.3d 331, 336 

(3d Cir. 2007)(“Because the District Court denied summary 

judgment on the ground that there is a material issue of fact to 

be determined by the jury, the order falls within Johnson [v. 

Jones, 515 U.S. 304 (1995)] and is one of the limited instances 

in which this Court does not have jurisdiction to hear an appeal 

of summary judgment in a 42 U.S.C. § 1983 cause of action where 

the defendant is asserting qualified immunity.”). 

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2003) (quotations omitted). For the reasons already discussed 

above, this Court finds that Defendants should not be 

“surprised” because excessive force as a legal theory has 

already been included in the Final Pretrial Order and the 

evidentiary basis underlying Plaintiff’s excessive force claim 

has not changed. Any perceived “prejudice” can be cured by 

providing the parties time to prepare for trial in light of 

Plaintiff’s clarified allegations. While the commencement of 

trial has been delayed, this Court finds that the amending of 

the Final Pretrial Order leads to the most orderly and efficient 

trial of the case. Finally, there has been no bad faith here. 

Thus, this Court finds that failing to amend the Final Pretrial 

Order to include the outstanding issues of fact surrounding the 

struggle between the Defendants and the Plaintiff would result 

in a manifest injustice. 

With respect to Trooper Brown, this Court already 

determined that, “even assuming that Brown struck Plaintiff only 

one time, this Court finds that a reasonable jury could find 

that such action constituted excessive force under the 

circumstances.” [Docket No. 103 at 26]. Thus, this Court’s 

qualified immunity decision as to Trooper Brown does not rely on 

the factual issues surrounding the MVR tape in the same manner 

as Trooper Tetzlaff because the facts, as previously set forth 

by the Plaintiff and Defendants, were sufficient for this Court 

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to make a determination on whether a reasonable jury could find 

a constitutional violation. To the extent a jury were to 

determine that there was additional force applied by Brown based 

on a review of the MVR, such a finding would only bolster this 

Court’s prior determination. 

B) Plaintiff’s Assault and Battery Claims

As discussed during the June 5, 2014 oral argument, there 

is debate among the parties as to whether Plaintiff’s assault 

and battery claims asserted pursuant to New Jersey law are 

viable in this matter.10 Defendants contend that Plaintiff’s 

assault and battery claims are barred because Plaintiff has 

admitted that he never filed the requisite New Jersey Tort 

Claims Act notice as required under N.J.S.A. 59:8-8.11 The 

Defendants raised Plaintiff’s failure to file a Tort Claims Act 

notice in their Answer, [Docket No. 38 at p. 22], as an 

10 See Defendants’ Motion in Limine, Docket No. 133; June 5, 

2014, Hearing Tr. 45:9-16; Docket No. 139, Defs.’ Supplemental

Submission at 15-21. 11 As set forth in Williams v. City of Millville, No. 12-

7540, 2014 U.S. Dist. LEXIS 33034, at *26 (D.N.J. Mar. 13, 

2014):

To state a claim under the TCA, "[n]o action shall be 

brought against a public entity or public employee . . . 

unless the claim upon which it is based shall have been 

presented in accordance with the procedure set forth in 

this chapter." N.J.S.A. § 59:8-3. That procedure requires a 

plaintiff to sign and file a notice of tort claim with the 

relevant public entity within 90 days from the accrual of 

the claim. Id. § 59:8-8. A plaintiff who fails to file 

notice within the 90-day period is "forever barred from 

recovering against [the] public entity or employee." Id.

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affirmative defense, but did not move for summary judgment as to 

these state law claims on the basis of that affirmatively pled 

defense. That said, this Court notes that the Joint Final 

Pretrial Order lists under “Plaintiff’s statement of the legal 

issues in the case,” that the Trooper’s “legal responsibility is 

based on 42 U.S.C. § 1983,” [Docket No. 112 at 20], and does not 

mention the common law claims. See Phoenix Canada Oil Co. v. 

Texaco, Inc., 842 F.2d 1466, 1476 (3d Cir. 1988)(“pretrial 

procedures provide the district courts with a useful tool to 

harness unwieldy litigation by simplifying the dispute and 

narrowing the issues for trial. For this reason, pretrial orders 

bind the parties unless modified by the court to prevent 

manifest injustice.”)(citing Fed. R. Civ. P. 16(e)). 

Plaintiff argues that the Defendants cannot assert that the 

common law claims are barred because Defendants have “waived” 

the argument. [Docket No. 138, p. 2 (citing Severino v. 

Sayreville, 2008 WL 5351044 at *5 (D.N.J. 2008)]. Plaintiff 

does not, however, argue that Plaintiff filed, attempted to 

file, or sought leave of Court to properly file a Tort Claims 

Act notice. See Hilburn v. Dept. of Corrections, No. 07-6064, 

2010 U.S. Dist. LEXIS 15777, at *27 (D.N.J. Feb. 23, 

2010)(noting that late filings are generally barred and that a 

party must seek the court’s permission to file a late notice 

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providing sufficient reasons constituting “extraordinary 

circumstances” for failure to file a timely notice). 

As an initial matter, this Court notes that other Courts 

within this District have deemed a failure to file the requisite 

notice to be jurisdictional and non-waivable. See Gattas v. 

City of Jersey City, No. 07-4242, 2010 U.S. Dist. LEXIS 20590, 

*11, n.8 (D.N.J. Mar. 5, 2010)(“The New Jersey Tort Claims Act 

notice provision is jurisdictional and cannot be waived.”); see

also, Canales v. Township of Toms River, No. 11-3159, 2014 U.S. 

Dist. LEXIS 21086, *97 (D.N.J. Feb. 20, 2014)(“The filing of a 

timely notice of claim as a precondition to filing a lawsuit is 

a jurisdictional requirement.”); Hilburn, 2010 U.S. Dist. LEXIS 

15777, at *32 (“The absence of notice as required under the 

NJTCA is apparently a jurisdictional bar.”). 

To the extent that the notice requirement has been deemed 

by some courts as subject to the application of principles of 

equitable estoppel, “where the interests of justice, morality 

and common fairness dictate,” Severino, 2008 U.S. Dist. LEXIS 

103323, at *9, such interests warranting the application of 

estoppel are inapplicable here. “Estoppel is permissible in the 

context of barring a defendant’s defenses, if a state entity or 

other defendant’s conduct leads the claimant to believe that the 

notice he or she did provide was satisfactory.” Hilburn, 2010 

U.S. Dist. LEXIS 15777 at *32. By affirmatively asserting that 

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Plaintiff failed to file the requisite notice in their Answer, 

the Defendants cannot be said to have, by their conduct, led the 

Plaintiff to believe that the Defendants were not objecting to 

Plaintiff’s failure to follow the proper procedure. Cf. Hill v. 

Bd. Of Ed., 183 N.J. Super. 36, 41 (N.J. App. Div. 

1982)(applying equitable estoppel principles in NJTCA notice 

context where the defendant failed to properly plead 

noncompliance with the notice provision as an affirmative

defense). Moreover, after receiving the Answer, Plaintiff did 

not seek leave of Court to file a late notice. 

Plaintiff presents no arguments in favor of equitable 

estoppel and, based on the circumstances discussed above, this 

Court finds that principle inapplicable here. Moreover, the 

state law claims are absent from the Joint Final Pretrial Order

as distinct legal theories, unlike the excessive force claim. 

See discussion supra at 21 (discussing lack of prejudice where 

claim was previously asserted in Final Pretrial Order). As 

such, Plaintiff’s common law tort claims are not viable in this 

matter due to Plaintiff’s failure to file the required notice. 

V. Conclusion: 

For the reasons discussed above, this Court will vacate its 

prior grant of qualified immunity in favor of Trooper Tetzlaff

on Plaintiff’s excessive force claim and defer a final 

determination on qualified immunity pending resolution of the 

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underlying facts by a jury. The decision denying qualified 

immunity as to Trooper Brown remains. The parties shall confer

with the Honorable Karen M. Williams in order to discuss 

amending the Joint Final Pretrial Order consistent with this 

Opinion. An appropriate Order will issue this date. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE 

Dated: June 24, 2014

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