United States District Court, D. New Jersey
DICKSON HIDALGO PAREDES, and D.V.R. A juvenile, by his parent and guardian, Dickson Hidalgo Paredes Plaintiffs,
EGG HARBOR TOWNSHIP BOARD OF EDUCATION; DR. ALICIA K. SCELSO; E.H.T. POLICE OFFICER DAVID ALGERI, E.H.T. POLICE OFFICER CURT WARE, E.H.T. POLICE OFFICER BURNS, E.H.T. POLICE OFFICER DEFAZIO, JOHN DOE #1-5 fictitious names, ABC CORP. #1-5 fictitious names, XYZ CITY #1-5fictitious names Defendants.
P. LUTZ, ESQ. ATTORNEY FOR PLAINTIFFS DICKSON HIDALGO PAREDES
AND DIOMAR VALENTIN RIVERA
M. PHILLIPS, ESQ. MADDEN & MADDEN, P.A. ATTORNEYS FOR DR.
ALICIA K. SCELSO AND THE EGG HARBOR TOWNSHIP BOARD OF
MERENICH, ESQ. GEMMEL, TODD & MERENICH, P.A. ATTORNEY FOR
DEFENDANTS OFFICER DAVID ALGERI, OFFICER CURT WARE, OFFICER
BURNS AND OFFICER DEFAZIO
HONORABLE JEROME B. SIMANDLE JUDGE
an action by Plaintiffs Dickson Hidalgo Paredes, and his son,
Diomar Valentin Rivera, seeking to hold various defendants
liable for a variety of constitutional and common law tort
claims arising out of Egg Harbor Township high school's
decision to suspend Plaintiff for the alleged theft of
another student's cell phone, after being informed of
such by the Egg Harbor Township Police Dept., pursuant to a
Memorandum Agreement between the Egg Harbor Township Police
Dept. and the Egg Harbor Township Board of Education.
additionally seeks an Order expunging his disciplinary record
and a declaratory judgment that the Uniform Memorandum of
Agreement between the Egg Harbor Township Police Dept. and
the Egg Harbor Township School District is
“invalid” and is “being used to discipline
EHT High School students without due process and based on
preliminary, speculative and often inaccurate information
[of] off-campus incidents.” (Id.)
before the Court are two cross-motions for summary judgment.
The “Board Defendants”, Dr. Alicia K. Scelso and
the Egg Harbor Township Board of Education, have moved for
summary judgment. In addition, the “Police
Defendants”, Officer David Algeri, Officer Curt Ware,
Officer Burns and Officer Defazio of the Egg Harbor Township
Police Dept., have submitted a separate motion for summary
judgment. Plaintiffs, Dickson Hidalgo Paredes, and his son,
Diomar Valentin Rivera, have submitted a cross-motion for
summary judgment against both groups of Defendants.
principal issue to be addressed is whether the undisputed
material facts could be found by a reasonable factfinder to
demonstrate that any of the Defendants violated any
constitutional right of Plaintiffs. For the reasons set forth
below, the Board Defendants' motion for summary judgment
will be granted, and the Police Defendants' motion for
summary judgment will be granted. Accordingly,
Plaintiffs' motion for summary judgment will be denied.
Factual Background 
allegedly “finding” an iPhone 5 in his bag on the
school bus on the way home from practice on January 9, 2014,
Plaintiff Rivera brought the phone home, charged it, called
his cousin to ask how much he should ask for the reward since
he was “just looking for a reward”, took out the
SIM card so it “could not be tracked” because he
did not want the police to come to his house, and flushed the
SIM card down the toilet. (Rivera Dep. 46:1-53:1, 145:2-13.)
As it turned out, the cell phone belonged to James Young
(“Young James”), one of Plaintiff Rivera's
teammates on the wrestling team and the son of Atlantic City
police officer Mr. James Bower ("Mr. Bower").
(Young James Dep. 26:9-16.) Young James had stored his phone
in his locker prior to wrestling practice and the phone was
not there at the end of practice. (Id. at 47:21-24,
48:23-25, 49:9-18.) Young James reported the phone missing to
his coaches. (Id. at 52:5.)
Mr. Bower learned that his son's phone was missing, he
utilized a GPS tracking system contained within the Apple
iPhone in order to trace the phone to 106 Glenn Avenue, Egg
Harbor Township, New Jersey, where Plaintiffs resided. After
learning of the phone's location, Mr. Bower and his son
traveled to the location to retrieve the son's iPhone.
(Bower Dep. 28:14-20.) 106 Glenn Avenue is owned by
plaintiff, Dickson Hidalgo Paredes, who was not present at
his home when Mr. Bower and Young James went to retrieve the
iPhone. (Paredes Dep. 15: 13-15, 40:22-25, 41:1-6.)
to Mr. Bower, prior to leaving his home, he called Defendant
Lt. David Algeri of the Egg Harbor Township Police Dept., now
deceased, and asked Lt. Algeri for assistance. (Bower Dep.
24:25, 25:1-7.) Once Bower arrived to Plaintiffs'
residence, he, again, called Defendant Lt. David Algeri on
his cell phone to inform him that he was outside of
Plaintiffs' residence and that he required police
assistance in order to recover his son's phone. (Pol.
Def. Br., Ex. D. at ¶ 8.) Defendant Algeri then reported
the information to dispatch and asked them to send a unit to
Plaintiffs' home. (Id.) Prior to any EHT police
unit going to 106 Glenn Avenue, Plaintiff Rivera, the
juvenile accused of taking the phone, had given the phone
back to Mr. Bower. (Rivera Dep. 153: 2-5, 164:1-4.)There is
no factual dispute that Plaintiff Rivera admitted he took
Young Bower's cell phone from the locker room of the high
school wrestling team of which both were members, as
discussed further herein.
Lt. Algeri, none of the responding officers spoke to Mr.
Bower regarding the stolen iPhone prior to the officers'
arrival at 106 Glenn Avenue. (Bower Dep. 59:24-25, 60:1-9,
62:3-7.) Moreover, prior to their arrival, Lt. Algeri did not
speak with any unit or officer who came onto the scene. (Pol.
Def. Br., Ex. F, ¶¶ 3-4; Ex. G., ¶¶ 3-4.)
The EHT officers that arrived on scene were Defendants
Officer Ware, Officer DeFazio and Officer Burns. (Rivera Dep.
171:17-172:4.) During his deposition, Plaintiff Rivera
testified that none of the EHT police ever touched him.
(Id.) Moreover, the EHT officers did not attempt to
enter Plaintiff Rivera's room, nor did they see anything
personal to Plaintiff Rivera. (Id. at 186:6-12.) The
only direction that the EHT officers gave Plaintiff Rivera
was a request to get his stepmother. (Id. at
175:19-20.) While inside Plaintiffs' residence, Officer
Ware advised the stepmother of the reason why they were
there, that criminal charges were being pressed against
Plaintiff Rivera and what they could expect next. (Ware Dep.
22:4-10.) Following that evening, the only criminal complaint
filed against Plaintiff Rivera regarding accusations of him
stealing the phone was filed by Mr. Bower, not any EHT police
officer. (Id. at 161:4-11, Pol. Def. Br., Ex. H.)
to a Memorandum of Agreement between the Egg Harbor Township
School District and the Egg Harbor Township Police Dept.,
Officer Ware sent an email to the Egg Harbor Township High
School on January 10, 2014 concerning the charges against
Plaintiff Rivera. (Ware Dep. 9-11; Pol. Def. Br., Ex. N.)
January 10, 2014, Defendant Dr. Scelso, Vice Principal at
EHTHS at all times relevant to this litigation, called
Plaintiff Rivera into her office at approximately 7:40 AM
after receiving notification from the EHTHS Athletic
Director, Michael Pellegrino, that there was an issue
involving two wrestlers, including Plaintiff Rivera, and the
police, due to an incident that occurred on school property
the previous day. (Def. Br., Ex. C; Scelso Dep. 11:8-12:6.)
Dr. Scelso took handwritten notes during the January 10, 2014
meeting with Plaintiff Rivera. (Id. at 12:11-14.)
Plaintiff Rivera told Dr. Scelso his version of the events
that took place on the previous day, January 9, 2014, which
involved Plaintiff Rivera being in the possession of the
iPhone belonging to another student from his wrestling team,
James Bower, Jr., without authorization or permission. (Def.
Br., Ex. C.) After speaking with Plaintiff Rivera, Dr. Scelso
requested that Plaintiff Rivera provide a written statement.
(Rivera Dep. 63:9-11.) Plaintiff Rivera provided a written
statement at Dr. Scelso's direction at 8:01 AM that
morning. (Def. Br., Ex. C.) Shortly thereafter, at
approximately 9:31 AM, Dr. Scelso received an email
correspondence from Officer Curt Ware of the Egg Harbor
Township Police Dept. (“EHTPD”), advising of
“an incident that occurred in the high school on 1/9/14
during wrestling practice.” (Def. Br., Ex. F.)
Ware's email to Dr. Scelso stated, in relevant part, as
A cell phone was stolen out of a member of the wrestling
teams [sic] locker that was reportedly locked. During the
course of the investigation during the evening of 1/9/14 the
phone was located in the possession of a fellow member of the
The victim was identified as James Brower [sic].
The accused was identified as Diomar Valentin Rivera.
Complaints were signed by the parent of Brower [sic] against
than one hour after receiving this email, Dr. Scelso received
another email correspondence from Detective Sergeant Fred
Spano of the EHTPD, which provided additional information
concerning the incident, and which stated in relevant part as
Theft of cell phone - son of ACPD Officer James Bower had his
cell phone stolen out of his locker at wrestling practice
today at the high school - Tracking on the phone alerted
Bower to the residence of 106 Glenn Ave - while awaiting
patrols [sic] arrival, Bower observed a subject exit the
residence - the son recognized him as a fellow member of the
wrestling team - Bower approached the subject and identified
himself and the subject produce[d] the phone after being
confronted by Bower - juvenile complaints were signed by
Bower and the phone recovered minus the SIM card which the
accused stated that he flushed down the toilet.
that afternoon, following her receipt of the email
correspondences from the EHTPD, at approximately 12:00 PM,
Dr. Scelso once again called Plaintiff Rivera into her
office. (Rivera Dep. 66:2-10; Scelso Dep. 16: 15-24.) Dr.
Scelso provided Plaintiff with the information she received
from the EHTPD, and she remarked that Plaintiff Rivera had
not told her that he removed the iPhone's SIM card and
disposed of same. (Rivera Dep. 66:12-67:14.) Plaintiff
conceded that he did not include that information in the
written statement previously provided to Dr. Scelso.
this second meeting, relying on the statements of the EHTPD
Officers and plaintiff Rivera's statements, Dr. Scelso
informed Plaintiff Rivera that he was suspended for four
days. (Id. at 67:17-68:1; Scelso Dep. 28:2-7.)
Shortly after advising Plaintiff of the suspension, Dr.
Scelso contacted plaintiff Rivera's father, Plaintiff
Dickson Hidalgo Paredes (“Mr. Paredes”), at
approximately 1:29 P.M., by telephone, in order to advise him
of the situation. (Scelso Dep. 26:12-27:2; Paredes Dep.
49:5-19, 50:1-3.) During this phone conversation, Mr. Paredes
did not indicate that he wanted to appeal or challenge the
suspension in any manner. In fact, Mr. Paredes never
expressed any desire to appeal the suspension, nor did he
familiarize himself with the process to do so. (Scelso Dep.
40:16-1; Paredes Dep. 60:23-25, 69:9-12.)
on January 10, 2014, Dr. Scelso sent a written correspondence
directed to the “parent/guardian” of Plaintiff
Rivera, in which she advised of the suspension, the terms of
the suspension and the basis of the suspension, and further
advised to contact her with any questions pertaining thereto.
(Def. Br., Ex. G.)
Relevant Policies and Procedures
Memorandum of Agreement Between EHT and ...