1 

NOT FOR PUBLICATION [Docket. No. 89] 

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 

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: 

This matter comes before the Court upon a motion by 

Defendants, State Troopers Brown, Tetzlaff, and Oliver 

(hereinafter “Defendants”), for summary judgment pursuant to 

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Federal Rule of Civil Procedure 56(a). [Docket No. 89]. This 

Court has reviewed the parties’ motion papers and heard oral 

argument on this matter on March 13, 2013. For the reasons set 

forth below, Defendants’ motion shall be granted in part and 

denied in part. 

II. Background:1 

 Plaintiff’s Diabetic Episode 

 The incidents giving rise to the instant case 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, Daniel Fried, has suffered from diabetes since the 

 

1

 The facts recited herein are drawn from the parties’ 

respective Rule 56.1 Statements of Material Facts, Defendants’ 

Response to Plaintiff's Statement of Material Facts, and 

Plaintiff's deposition testimony. While there are factual 

disputes between the parties’ accounts, the facts are construed 

in a light most favorable to Plaintiff, the non-moving party. 

See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). This Court 

notes that Plaintiff has made this task very difficult as he 

failed to provide individual or detailed responses to 

Defendants’ Rule 56.1 Statement. For example, Plaintiff denies 

facts clearly not in dispute as set forth on his Amended 

Complaint - e.g., that the incident giving rise to the instant 

matter took place on November 20, 2010 on New Jersey Route 72 

West. Compare Defs.’ SMF ¶1 with Pl.’s Opposition to SMF #1 and 

Amended Complaint at ¶¶ 13 & 23. In order to properly form the 

factual bases for this Opinion and construe facts in a light 

most favorable to Plaintiff, this Court has drawn many of the 

underlying facts directly from Plaintiff’s own version of events 

as contained in his deposition. July 20, 2012, Deposition of 

Daniel J. Fried, (hereinafter “Fried Dep.”). 

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age of eight and takes insulin for his condition.2 On the 

relevant date, Plaintiff left his shore house on Long Beach 

Island at about 5:30 p.m. and was driving towards a diner 

several miles away where he had planned to meet with family 

members. Fried Dep. at 74-75; DSMF ¶¶ 10-11. While driving, 

Plaintiff began to experience a diabetic episode and became 

“less than lucid very suddenly.” Fried Dep. at 77:19-20. 

 

 Plaintiff’s Initial Interaction with the Troopers 

 The Plaintiff was unequivocal in his deposition that he has 

no recollection whatsoever of his interaction with the State 

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

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

82:10; 91:14-18.3 Therefore, the following facts are taken from 

accounts provided by the troopers on scene, from their 

 

2

 Plaintiff argues in his brief that he was wearing a “Medic 

Alert” bracelet at the time of the incident. This statement is 

not supported by anything in the record, including Plaintiff’s 

deposition. As an unsworn statement, this Court need not 

consider this as a fact in resolving the instant motion for 

summary judgment. See Locascio v. Balicki, 07-4834, 2011 U.S. 

Dist. LEXIS 66679 at * 6 (D.N.J. Jun. 22, 2011)(“The Court must 

accept the nonmoving party's well-pleaded factual allegations as 

true and construe those allegations in the light most favorable 

to the nonmoving party, but the Court will disregard any 

unsupported conclusory statements.”). 

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.”). 

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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. Trooper Brown saw Plaintiff 

jogging or moving fast out of the wooded area and enter his van. 

Id. at 41:6-14; Pl.’s Resp. SMF 26-32. Brown then approached 

the van, identified himself, and asked Plaintiff if he was okay, 

but Plaintiff did not respond. Id. at 45:17-21; 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. Intoxication includes substances other than alcohol. 

Id. 54:1-7; Pl.’s Resp. SMF 26-32. 

 Based on his observations, Brown asked whether Plaintiff 

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

 

4

 The MVR tape is 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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62:24-63:5. During the interaction, it became clear that 

Trooper Tetzlaff was on 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 has 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, 

Dr. Lorber opined that the manifestations of hypoglycemia is 

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“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. 

 At this point, Tetzlaff grabbed Plaintiff by his arms in 

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

 

7 The video was also functioning but the camera was not 

pointed in the direction of the interaction. 

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“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.” 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 

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

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arm.” Id. Again, this Court must accept the facts in a light 

most favorable to Plaintiff for purposes of this motion. 

 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 Moves to Police Car and Medical Treatment8 

While in the back of the car, Plaintiff told the Troopers 

he was a diabetic and needed medical treatment. Fried Dep. 

97:8-23; Tetzlaff Dep. 154:12-15. At 7:18 p.m., EMS was 

requested by the Troopers for a “diabetic emergency.” Defs.’ Ex. 

B. Plaintiff testified that he asked the Troopers to get juice 

from his car but they refused. Fried Dep. 92:20-24. Tetzlaff 

testified and the MVR tape reflects, however, that he looked in 

the car but was only able to find a bag of fruit. Tetzlaff Dep. 

159:1-10; Defs.’ Ex. M (“Will bananas do the same thing, I can’t 

find any juice in his car.”). Once the ambulance arrived, 

 

8

 Plaintiff has stated that he was aware of what was 

happening as of the time he was in the back of Tetzlaff’s car. 

Fried Dep. 81:19-23. 

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Plaintiff was transported by Woodland EMS to Southern Ocean 

County Hospital for treatment. 

 Plaintiff’s Injuries 

Plaintiff states that his left wrist was broken during the 

arrest. Fried Dep. 96:13-17. The records from Woodland EMS and 

Southern Ocean County Hospital contain no information whatsoever 

regarding Plaintiff’s alleged broken wrist or wrist pain. 

Defs.’ Exs. I & J. Notably, portions of those reports state 

that Plaintiff reported a pain level of 0/10 and had “small 

scrape on face not any other injury.” Id. 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 this motion, the Court will consider that 

Plaintiff’s left wrist was broken during the course of the 

arrest. 

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. 

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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 

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, 

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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 

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

summary judgment.”). 

IV. Analysis: 

As an initial matter, this Court notes that Plaintiff has 

agreed to dismiss certain claims and, therefore, the Court will 

not address those claims in this Opinion – i.e., 1) all claims 

against Defendant Joseph Fuentes; 2) direct claims against the 

New Jersey State Police; 3) claims against Troopers Brown, 

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Oliver, and Tetzlaff in their official capacities;9 and, 4) all 

claims asserted against Trooper Oliver.10 Therefore, the only 

claims remaining in this case are asserted against Troopers 

Brown and Tetzlaff in their individual capacities. With respect 

to the substance of these claims, only the following remain: 42 

U.S.C. § 1983 claims for excessive force, state created danger, 

and deliberate indifference to a serious medical need, and 

related state common law claims for assault and battery.11 

State Created Danger Theory 

 Plaintiff argues that he has presented a viable claim under 

42 U.S.C. § 1983 pursuant to the “state-created danger theory.” 

Pursuant to this theory, “liability may attach where the state 

acts to create or enhance a danger that deprives the plaintiff 

of his or her Fourteenth Amendment right to substantive due 

process.” Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013). 

To state a claim based on such a theory, a plaintiff must show: 

 

9

 See Pl.’s Opp. Br. at 15. 

10 Plaintiff conceded at oral argument that there are no 

viable claims remaining against Trooper Oliver. 

11 In his sur-reply, Plaintiff requested leave to amend his 

complaint to assert a false arrest claim. Pl.’s Sur-Reply at p. 

4, n. 7. If Plaintiff seeks to pursue this claim, a formal 

motion for leave to amend would be necessary at this juncture. 

See Anderson v. Bondex Int'l, Inc., 2014 U.S. App. LEXIS 247 at 

* 7 (3d Cir. Jan. 7, 2014)(“Federal Rule of Civil Procedure 15 

provides, in the context relevant here, that ‘a party may amend 

its pleading only with the opposing party's written consent or 

the court's leave.’”). 

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1) the harm ultimately caused was foreseeable and fairly 

direct; 

2) a state actor acted with a degree of culpability that 

shocks the conscience; 

3) a relationship between the state and the plaintiff 

existed such that the plaintiff was a foreseeable victim 

of the defendant's acts, or a member of a discrete class 

of persons subjected to the potential harm brought about 

by the state's actions, as opposed to a member of the 

public in general; and 

4) a state actor affirmatively used his or her authority in 

a way that created a danger to the citizen or that 

rendered the citizen more vulnerable to danger than had 

the state not acted at all. 

Sanford v. Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006) (citing 

Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006) 

(internal quotation marks and footnotes omitted)). 

 As an initial matter, this Court notes that, as raised in 

the Defendants’ reply brief, Plaintiff seeks redress for the 

force applied by the officers during the arrest pursuant to two 

theories: 1) under the Fourth Amendment for excessive force and, 

2) under the Fourteenth Amendment state created danger theory. 

In other words, Plaintiff seeks two bites at the constitutional 

apple for the same conduct. 

 Plaintiff avers that summary judgment on the state created 

danger theory is not warranted because Plaintiff was harmed by 

the officers in that he suffered a broken wrist and permanent 

wrist injury. Pl.’s Br. at 16.12 Plaintiff also cites to the 

 

12 To the extent that Plaintiff’s alleged injury is the 

denial of medical care, that assertion is further discussed in a 

separate claim infra. 

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screaming on the MVR tape that can be heard during the arrest as 

evidence of the harm. Id. Despite Plaintiff’s attempt, the law 

is clear that a “state-created danger claim cannot be predicated 

upon the force used to arrest the plaintiff.” Brice v. City of 

York, 528 F. Supp. 2d 504 (M.D. Pa. 2007). As stated by the 

Supreme Court in Graham v. Connor, “all claims that law 

enforcement officers have used excessive force – deadly or not —

in the course of an arrest, investigatory stop, or other 

‘seizure’ of a free citizen should be analyzed under the Fourth 

Amendment and its ‘reasonableness’ standard, rather than under a 

‘substantive due process approach.’” 490 U.S. 386, 396 (1997). 

Therefore, because Plaintiff is seeking recovery for conduct 

that took place during the course of an arrest, his proper 

recourse is under the Fourth Amendment, not the state created 

danger theory; Defendants’ motion for summary judgment will 

therefore be granted on this count. See Graham, 490 U.S. 386; 

Brice, 528 F. Supp. 2d at 515 (“The ‘elusive’ conscious-shocking 

standard of the state-created danger doctrine is particularly 

ill-suited to split-second police conduct.”). 

Denial of Medical Care 

 Plaintiff also contends that the Defendants deprived him of 

needed medical care. Deliberate indifference to the medical 

needs of an arrestee constitutes a violation of the arrestee’s 

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Fourteenth Amendment right to due process. See Smith v. 

Gransden, 2014 U.S. App. LEXIS 1037 at * 8-9 (3d Cir. Jan 16, 

2014)(citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 

244 (1983)); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 

575, 582 (3d Cir. 2003); Groman v. Twp. of Manalapan, 47 F.3d 

628, 636-37 (3d Cir. 1995)). To demonstrate deliberate 

indifference, a plaintiff must show: "(i) a serious medical 

need, . . . (ii) acts or omissions by [law enforcement] 

officials that indicate deliberate indifference to that need, 

and (iii) a causal connection between the indifference and the 

plaintiff's injury.” Smith, 2014 U.S. App. LEXIS 1037 at * 9 

(internal citations and quotations omitted). 

 The Third Circuit has held that “deliberate indifference is 

a subjective standard of liability consistent with recklessness 

as that term is defined in criminal law” and that a plaintiff 

“must therefore show that the police officers knew of the risk 

to [plaintiff] and disregarded it.” Gunter v. Twp. of 

Lumberton, 535 Fed. Appx. 144, 149 (3d Cir. Jul. 31, 

2013)(internal quotations and citations omitted). Notably, 

Plaintiff is claiming a delay, not a denial in medical care. 

See Pl.’s Br. at 32-33. As such, the "objective seriousness of 

the deprivation should . . . be measured 'by reference to the 

effect of the delay in treatment.'" Mantz v. Chain, 239 F. 

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Supp. 2d 486, 504 (D.N.J. 2002) (quoting Beyerbach v. Sears, 49 

F.3d 1324, 1326 (8th Cir. 1995)). 

 Trooper Brown 

 Construing the facts in a light most favorable to 

Plaintiff, summary judgment is warranted for Defendants as to 

Plaintiff’s claim for denial of medical care. Plaintiff cannot 

dispute that he contradicted himself in response to Brown’s 

questions with regard to his medical condition, leaving Brown 

unsure as to whether Plaintiff was intoxicated or having a 

medical emergency. Plaintiff has not provided evidence to this 

Court demonstrating that Brown definitively knew that Plaintiff 

was experiencing a diabetic episode and deliberately disregarded 

that fact. As stated above, Plaintiff argues in his brief that 

he was wearing a “Medic Alert” bracelet at the time of the 

incident, but this statement is not supported by any evidence in 

the record whatsoever, including Plaintiff’s deposition. As an 

unsworn statement and mere argument of counsel, this Court need 

not consider this as a fact in resolving the instant motion for 

summary judgment. See Locascio, 2011 U.S. Dist. LEXIS 66679 at 

* 6 (“The Court must accept the nonmoving party's well-pleaded 

factual allegations as true and construe those allegations in 

the light most favorable to the nonmoving party, but the Court 

will disregard any unsupported conclusory statements.”). 

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 Plaintiff also relies on the conclusions of his expert, Mr. 

Joseph Stine, a former police chief, in support of this claim. 

Mr. Stine states that “Trooper Brown was trained to know he 

should call EMS if he suspected a diabetic emergency.” Pl.’s 

Br. at 36. However, the record is undisputed that Brown was 

unsure of whether Plaintiff was intoxicated or having a medical 

emergency. Even Plaintiff’s own medical expert, Dr. Lorber, 

opined that the manifestations of hypoglycemia are “tremendously 

variable and individual.” Defs.’ Ex. G. Lorber Dep. 38:1-6. 

 While it may have been a violation of protocol for Brown 

not to call EMS immediately if he had a suspicion of a medical 

issue, see Stine Supplemental Report, Pl.’s Ex. D, Brown’s 

conduct does not rise to the actionable level of deliberate 

indifference. Plaintiff has not produced any medical evidence 

of how the delay of a total of 22 minutes, from the time Brown 

arrived on the scene to when EMS was called, caused him to 

suffer harm which he would not have suffered had the ambulance 

been called immediately other than to state in conclusory 

fashion that “[t]here is no dispute that Mr. Fried suffered 

during the time period he was waiting for medical attention.” 

Pl.’s Br. at 33.13 Thus, Plaintiff’s claim for denial of medical 

care must be dismissed as to Defendant Brown. See Mantz, 239 F. 

 

13 As clarified during oral argument, the only harm alleged 

to be suffered by Plaintiff is “mental anguish” experienced 

while waiting for treatment. 

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Supp. 2d at 504-05 (denying denial of medical care claim where 

plaintiff “failed to provide any medical evidence, beyond his 

own subjective testimony, that Trooper['s]. . . alleged delay in 

responding to his demands for an ambulance caused him to suffer 

harm which he would not have suffered had an ambulance been 

immediately called to the scene.”); Wade v. Colaner, No. 06-

3715, 2009 U.S. Dist. LEXIS 23057 at * 35 (D.N.J. Mar. 20, 

2009)(stating that “when considering a delay in obtaining 

treatment, courts should be mindful of the effects of the delay 

in treatment, i.e. the injury sustained by the arrestee as a 

result of the delay” and holding that delay in treatment where 

plaintiff suffered burns from pepper spray used by police did 

not constitute deliberate indifference). 

 Trooper Tetzlaff 

 Similarly, Plaintiff’s claim of deliberate indifference 

fails as to Defendant Tetzlaff. First, it is undisputed that 

Brown did not say anything to Tetzlaff about Plaintiff other 

than he thought Plaintiff might be drunk and that Plaintiff was 

giving him the “runaround.” See Brown Dep. at 104:20-24. Once 

Plaintiff was in the back of Tetzlaff’s car following the arrest 

and informed Tetzlaff of his diabetic emergency, an ambulance 

was called and Plaintiff promptly received medical treatment. 

While Plaintiff testified at his deposition that the ambulance 

was called because he “forced [the troopers] to provide [him] 

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with medical treatment,” Fried Dep. 97:17-20, it is undisputed 

that Tetzlaff arrived on the scene at approximately 7:07 p.m. 

and an EMS unit was requested at approximately 7:18 p.m. Defs.’ 

Ex. B. Moreover, while Plaintiff avers that the troopers did 

not try to find him juice, the MVR tape reveals that Trooper 

Tetzlaff offered him fruit. Defs.’ Ex. M (“Will bananas do the 

same thing, I can’t find any juice in his car.”). This Court 

will accept Tetzlaff’s version offering fruit for purposes of 

this motion. See Scott v. Harris, 550 U.S. 372, 380 

(2007)(“[w]hen opposing parties tell two different stories, one 

of which is blatantly contradicted by the record, so that no 

reasonable jury could believe it, a court should not adopt that 

version of the facts for purposes of ruling on a motion for 

summary judgment.”). 

 Based on the above, this Court finds that no reasonable 

jury could find that Trooper Tetzlaff was deliberately 

indifferent to Plaintiff’s medical needs. Again, Plaintiff’s 

own allegations as to the “damage” caused by the delay in 

receiving care does not suffice at the summary judgment stage. 

See Mantz, 239 F. Supp. 2d at 504-05 (granting summary judgment 

on medical care claim under similar circumstances); see also, 

Wade, 2009 U.S. Dist. LEXIS 23057 at * 35 (granting summary 

judgment in delay of medical care claim for lack of deliberate 

indifference where plaintiff suffered pepper spray burns). 

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Excessive Force & Common Law Claims 

 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 

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

place in the context of effecting an arrest, the possibility 

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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)). 

Trooper Tetzlaff 

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. In this matter, the Court finds that Trooper 

Tetzlaff is entitled to qualified immunity as to Plaintiff’s 

excessive force and common law assault and battery claims 

because his conduct was reasonable under the circumstances and, 

therefore, not a constitutional violation. 

As stated by the Third Circuit, “even if an officer uses 

force that was objectively unreasonable, he may nevertheless be 

protected from individual monetary liability if he reasonably 

believed, based on the facts and circumstances known to him, 

that the force was lawful.” Rivas, 365 F.3d at 201. Construing 

all facts in favor of Plaintiff, it is undisputed that Tetzlaff 

was not aware when he arrived on the scene that Trooper Brown 

had any suspicion that Plaintiff might be having a medical 

emergency; all Tetzlaff was told was that Plaintiff might be 

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

not answering his questions. Brown Dep. at 104:20-24. Again, 

Brown did not say anything to Tetzlaff about diabetes. Tetzlaff 

Dep. at 57:19-22. It is further undisputed that Plaintiff put 

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his hands back in his pockets after being instructed to remove 

them and that Plaintiff was walking towards Tetzlaff when 

Tetzlaff grabbed the Plaintiff’s arm and began the arrest. 

Factors this Court has considered when making this 

determination of reasonableness include: the fact that Tetzlaff 

thought Plaintiff might pose an immediate threat to safety of 

the officers, the fact that the MVR tape reveals that Plaintiff 

resisted arrest, that the conduct at issue took place in the 

context of effecting an arrest, and the fact that Tetzlaff 

thought, though mistakenly, that Plaintiff may be armed. See 

Graham, 490 U.S. at 396; Sharrar v. Felsing, 128 F.3d 810, 822 

(3d Cir. 1997). Even assuming that Tetzlaff “jumped” on the 

Plaintiff’s back to bring him to the ground, the MVR tape 

captures Plaintiff being told to “stop resisting.” Tetzlaff was 

also unsure of whether the Plaintiff was armed and, again, was 

totally unaware at that point that Plaintiff was having a 

medical emergency. 

Plaintiff’s expert report essentially asks this Court to 

deny summary judgment as to Tetzlaff because Plaintiff “was 

never asked to, or given the opportunity to comply with being 

arrested.” Pl.’s Ex. C at 12. This Court, however, must judge 

Tetzlaff’s actions from the perspective of a reasonable officer 

on the scene, rather than with the 20/20 vision of hindsight. 

See Gruver v. Borough of Carlise, No. 05-1206, 2006 U.S. Dist. 

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LEXIS 31448, * 11-13 (M.D. Pa. May 19, 2006)(finding that 

officers did not apply excessive force where officers used a 

taser gun during the course of an arrest of an individual having 

a diabetic emergency but who appeared intoxicated). In light of 

what Tetzlaff encountered and his need for split-second 

judgments, Tetzlaff is entitled to qualified immunity. See 

Saucier, 533 U.S. at 204 (“[i]f an officer reasonably, but 

mistakenly, believed that a suspect was likely to fight back, 

for instance, the officer would be justified in using more force 

than in fact was needed.”); Fennimore v. Lower Twp., No. 09-

2090, 2011 U.S. Dist. LEXIS 47948 at * 21-22 (D.N.J. May 4, 

2011)(“the undisputed record demonstrates, that the force 

exercised by the Defendant Officers was objectively reasonable 

and that the Officers' conduct did not violate Plaintiff's 

constitutional rights. Thus, Defendants are entitled to 

qualified immunity.”). 

This same reasoning also applies to the common law claims 

of assault and battery against Trooper Tetzlaff, which will also 

be dismissed. See Johnson v. De Prospo, No. 08-1813, 2010 U.S. 

Dist. LEXIS 137938, at *19 (D.N.J. Dec. 30, 2010)(applying the 

excessive force analysis to common law assault and battery 

claims). 

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 Trooper Brown 

 While it is true that “[n]ot every push or shove, even if 

it may later seem unnecessary in the peace of a judge’s 

chambers, violates the Fourth Amendment,” (Graham, 490 U.S. at 

396 (internal quotations and citation omitted)), there are 

disputed issues of fact that must be resolved by a jury with 

respect to the reasonableness of the force applied by Trooper 

Brown. This includes, but is not limited to, how many baton 

strikes Brown applied. 

 Plaintiff’s expert, Mr. Stine, has opined that the use of 

the baton was “excessive force and contrary to generally 

accepted practices and procedures for professional law 

enforcement officers.” Pl.’s Ex. B at 13. As discussed at oral 

argument, this Court agrees with Defendants that the legal 

conclusions contained in Plaintiff’s expert report cannot be 

considered. See Patrick v. Moorman, 536 Fed. Appx. 255, 258 (3d 

Cir. 2013)(“Rule 704 . . . prohibits experts from opining about 

the ultimate legal conclusion or about the law or legal 

standards.”). While the sections of Plaintiff’s reporting 

deeming the force applied “excessive force” must be disregarded, 

the Court can consider Stine’s statement that Brown’s use of the 

baton was contrary to generally accepted practices and 

procedures for law enforcement officers. 

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 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. 

Brown had unconfirmed suspicions that Plaintiff might be having 

a medical issue, including a diabetic episode. Moreover, while 

Plaintiff may have resisted arrest, there were two officers on 

the scene versus Plaintiff, and Brown, due to his length of 

interaction with Plaintiff, and unlike Tetzlaff, had less reason 

to believe that Plaintiff could have been armed and/or 

dangerous. Thus, in light of the facts and circumstances known 

to Brown at the time, a jury could conclude that his use of the 

baton was unreasonable and in violation of Plaintiff’s Fourth 

Amendment rights. 

 Since the Court has found a genuine dispute of material 

fact as to whether Brown used excessive force, it now turns to 

the second prong of the qualified immunity analysis: whether it 

would have been clearly established to a reasonable officer in 

November 2010 that Brown’s conduct was unlawful. The Supreme 

Court has clarified that conduct may be clearly established as 

unlawful, even if "the very action in question [has not] 

previously been held unlawful." Safford Unified Sch. Dist. # 1 

v. Redding, 557 U.S. 364, 377 (2009) (quoting Wilson v. Layne, 

526 U.S. 603, 615 (1999)). "[E]ven as to action less than an 

outrage, officials can still be on notice that their conduct 

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violates established law in novel factual circumstances." Id. 

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002) (internal 

quotations omitted)). 

 This is not a case where the law was in controversy at the 

relevant time. In 2010, the law was clear that an officer may 

not assault an individual having a potential medical emergency 

with a baton without adequate provocation. See, e.g., Graham, 

490 U.S. at 394 (recognizing a right under the Fourth Amendment 

to be free from the use of excessive force); Weber v. Rodriguez, 

07-2097, 2011 U.S. Dist. LEXIS 68772 at *19-20 (“in 2006, it was 

well-established that beating a subdued arrestee was a 

constitutional violation.”). Trooper Brown has not cited any 

countervailing authority showing that a reasonable officer could 

have believed his conduct comported with established legal 

standards under these circumstances. Accordingly, he has failed 

to establish his entitlement to qualified immunity. 

 Therefore, Defendant’s motion for summary judgment will be 

denied as to Plainitff’s claims of excessive force and assault 

and battery against Trooper Brown as well as his assertion of 

qualified immunity on the same. See Johnson v. De Prospo, No. 

08-1813, 2010 U.S. Dist. LEXIS 137938, at *19 (D.N.J. Dec. 30, 

2010) ) ("Because there exists a genuine issue of material fact 

as to whether the officers used excessive force, summary 

judgment is denied on Johnson's assault and battery claim."). 

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V. Conclusion: 

For the reasons discussed above, this Court will grant 

summary judgment in favor of Defendants on all claims with the 

exception of Plaintiff’s claims for excessive force and assault 

and battery against Trooper Brown. An appropriate Order will 

issue this date. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB 

UNITED STATES DISTRICT JUDGE 

Dated: March 19, 2014 

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