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Felix Rosario and Maria Elena Rosario v. Manny Carillo

July 29, 2011

FELIX ROSARIO AND MARIA ELENA ROSARIO, PLAINTIFFS,
v.
MANNY CARILLO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheridan, U.S.D.J.

NOT FOR PUBLICATION

OPINION

This matter is before the court on Felix Rosario and Maria Elena Rosario's (individually, "Mr. Rosario" and "Ms. Rosario," and collectively, "Plaintiffs") motion for summary judgment ("Plaintiffs' Motion for Summary Judgment"). On August 25, 2009, Plaintiffs filed an amended complaint ("Plaintiffs' Amended Complaint") against Defendants Manny Carillo ("Mr. Carillo"), et al. ("Defendants") in which Plaintiffs allege that Defendants: (1) violated Plaintiffs' federal and state constitutional rights, (2) falsely arrested and imprisoned Mr. Rosario, (3) maliciously prosecuted Mr. Rosario, (4) assaulted and battered Mr. Rosario, (4) tortiously invaded Plaintiffs' privacy, (5) intentionally inflicted emotional distress upon Plaintiffs, and (6) conspired to commit five afore-mentioned offenses.

For the reasons set forth below, this court denies Plaintiffs' Motion for Summary Judgment.

I On September 9, 2006, Plaintiff Mr. Rosario visited his girlfriend, Jasmine Hernandez ("Ms. Hernandez"), at her mother Esther Lee's ("Ms. Lee") home. Ms. Hernandez met Mr. Rosario outside the home, and soon an argument ensued between the two. Mr. Rosario decided to take his anger out on Ms. Lee's car by kicking the rear quarter panel and smashing the rear windshield with a metal pipe. After Mr. Rosario drove away, Ms. Lee or her boyfriend, Mr. Carillo, a Newark police officer who resides at the same residence, contacted the local police. The local officers arrived and took a statement from Ms. Hernandez.

The officers returned to the police station to take statements and complete domestic violence paperwork. Ms. Hernandez and her mother drove to the police station intending to complete the domestic violence paperwork. For approximately the next 20 minutes, Mr. Rosario sent Ms. Lee a series of obscene text messages, including the following: "Let me hit that," "Do you fuck for rent? I got money," "You can't lock me up because you suck a cop's dick, ha, ha, lol," and "Take me to court, you slut, lol." When Mr. Carillo learned of these text messages, he called the Newark police, informing them that he was going to go to Ms. Rosario's home. Mr. Carillo also told the Newark police that it should send a unit to Ms. Rosario's home since Mr. Rosario damaged Ms. Lee's car, sent obscene text messages, and threatened to burn Ms. Lee's home.

Defendants Jose Ferriera, Wayne Pugh, Jeanette Burgos, and Robert Leonard, arrived at Ms. Rosario's home. After speaking with Mr. Carillo, Officer Burgos went to the rear of the home in case Mr. Rosario attempted to escape. Officer Ferriera or Officer Pugh knocked on the front door of the home. Ms. Rosario answered the door, and Officer Ferriera gave his account of the exchange that ensued:

Q. What happened after she opened the door?

A. We asked for Felix. She pointed to her right. She said he's in there.

Q. How did you ask for Felix?

A. Where is Felix or is Felix home, something like that.

Q. What did she say?

A. He's in there.

Q. So she basically acknowledged that he was home?

A. Yes.

Q. Did you ask her for permission to enter the house?

A. No.

Q. Did she give you permission to enter the house?

A. Yes. When she pointed and said he's in there.

Q. But you didn't ask her for permission to enter the house?

A. No.

Q. So you took her response to your question where is Felix as permission to enter the house?

Mr. Lipshutz: Objection.

Mischaracterizes his testimony.

Q. What was your understanding? You obviously acted upon it, so you took her answer to your question where is Felix as permission to enter the house?

A. Yes.

Q. And did you have any problems entering the house?

A. No.

Officer Pugh also describes the interaction with Ms. Rosario:

Q. After you spoke to the Lieutenant Carillo, what did you do?

A. We went and knocked on the door.

Q. When you say "we," who are we talking about?

A. Myself and Officer Ferriera.

Q. Were Officers Burgos and Leonard with you when you went to knock on the door?

A. I don't recall.

Q. Do you remember which one of you two, you or Jose Ferreira, actually ...


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