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Kevin Francis v. City of Newark

March 29, 2011


The opinion of the court was delivered by: Hochberg, District Judge:




Plaintiff brings this action under 42 U.S.C. §§ 1983, 1985, and 1986. Accordingly, this Court has federal question jurisdiction, pursuant to 28 U.S.C. § 1331. Plaintiff is an African American teenage male, whose complaint alleges that he was detained and assaulted by two police officers employed by the City of Newark ("Newark"), Antonio Tavarez and Anthony Matos. The complaint names Newark and the following members of the Newark Police Department as defendants: lieutenant Darrin Marasco, officer Anthony Matos, and lieutenant Adolph Vasquez.*fn1 The complaint contains 19 counts. Counts 1-5 are federal civil rights claims. Counts 6-19 are state statutory and common law claims.

Defendants Newark and Darrin Marasco now move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c).*fn2 Newark and Marasco argue that summary judgment is appropriate on three principal grounds: 1) the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:9-2(d), bars plaintiff from recovering pain and suffering damages for the claims asserted in counts 6-18 of the complaint; 2) the civil rights claims against Newark fail because it is a municipality and may not be held liable by plaintiff unless plaintiff's injuries were caused by a custom, policy, or deficient training by Newark; and (3) Officer Marasco did not engage in a conspiracy to violate plaintiff's civil rights.


The parties agree that on July 17, 2007, plaintiff was stopped and detained by officers Tavares and Matos. Plaintiff is African-American and was 13 years old at the time. Although the parties agree that plaintiff was detained by Tavarez and Matos, they have provided sharply conflicting accounts of the events that took place after the detention.

According to plaintiff's testimony, after he was detained, Tavarez and Matos put him into the back of their car and drove around with him for a period of time. During the drive, plaintiff claims Tavarez and Matos attempted to coerce plaintiff into admitting to a crime he did not commit by threatening to beat him and to throw him off a bridge if he did not admit to criminal activity. According to plaintiff, Tavarez and Matos then took plaintiff to see their supervising officer, who told Tavarez and Matos to take plaintiff home. Plaintiff testified that instead of taking him home, Tavarez and Matos took him to a secluded location and told him to urinate on himself. Plaintiff claims that after he refused to do so, one officer held plaintiff while the other struck him repeatedly in the stomach with his fist and a baton. Plaintiff contends that he then fell to the ground, at which time one of the officers urinated on him. Plaintiff testified that the officers then ordered plaintiff to stay where he was and left the secluded location.

Defendants do not contest that plaintiff was detained, or that he was taken to see a supervisory officer. However, they deny that plaintiff was threatened, beaten, urinated upon, or left in a secluded location. Officer Matos testified that he and his partner, officer Tavarez, stopped plaintiff in response to a dispatch call concerning a robbery. According to Matos, plaintiff was placed in the officers' car for questioning regarding the robbery. Matos testified that he and Tavarez kept plaintiff in their car while canvassing the area and then stopped the car so that plaintiff could be questioned by a detective. During the questioning, both the detective and lieutenant Adolph Vasquez were present. According to defendants, after the detective had questioned plaintiff, Matos and Tavarez dropped plaintiff off at Penn Station.

On or about July 24, 2007, plaintiff filed an internal affairs complaint with the Newark Police Department regarding the incident. The complaint was investigated by defendant Marasco. The investigation did not sustain plaintiff's complaint, but did conclude that the officers should not have dropped plaintiff off anywhere because plaintiff was a juvenile in violation of the Newark curfew ordinance. The investigation therefore recommended a police trial of Matos and Tavarez for failing to enforce the curfew ordinance against plaintiff by taking him in to be processed for violating the curfew ordinance.

In connection with the investigation, plaintiff provided the police department with the tee shirt he was wearing the night of the incident for a DNA analysis. According to a laboratory report generated in connection with the police department internal affairs investigation, no metabolic waste products excreted in urine were found on the tee shirt provided by plaintiff. Plaintiff responds to the laboratory report by questioning whether the tee shirt analyzed in the report is the tee shirt provided by plaintiff. Plaintiff specifically contends that Marasco did not log the brand name of the tee shirt provided by plaintiff. Further, although plaintiff's attorney requested the return of the tee shirt, plaintiff contends that it was not returned and appears to be missing. Plaintiff observes that Marasco previously served as the supervisor of defendant Matos and suggests that Marasco destroyed the tee shirt provided to the police department by plaintiff and provided a dummy tee shirt to the laboratory for analysis. Defendants deny that Marasco destroyed the tee shirt and provided a dummy tee shirt to the laboratory.


Pursuant to Federal Rule of Civil Procedure 56(c), a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, "summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and inferences must be construed in the light most favorable to the non-moving party. Peters v. Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994). The judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. "Consequently, the court must ask whether, on the summary judgment record, reasonable jurors could find facts that demonstrated, by a preponderance of the evidence, that the nonmoving party is entitled to a verdict." In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 860 (3d Cir. 1990).

The party seeking summary judgment always bears the initial burden of production. Celotex, 477 U.S. at 323. This burden requires the moving party to establish either that there is no genuine issue of material fact and that the moving party must prevail as a matter of law, or to demonstrate that the nonmoving party has not shown the requisite facts relating to an essential element of an issue on which it bears the burden. Id. at 322-23. This burden can be "discharged by showing ... that there is an absence of evidence to support the nonmoving ...

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