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Paredes v. Egg Harbor Township Board of Education

United States District Court, D. New Jersey

December 26, 2017

DICKSON HIDALGO PAREDES, and D.V.R. A juvenile, by his parent and guardian, Dickson Hidalgo Paredes Plaintiffs,
v.
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.

          THOMAS P. LUTZ, ESQ. ATTORNEY FOR PLAINTIFFS DICKSON HIDALGO PAREDES AND DIOMAR VALENTIN RIVERA

          REGINA M. PHILLIPS, ESQ. MADDEN & MADDEN, P.A. ATTORNEYS FOR DR. ALICIA K. SCELSO AND THE EGG HARBOR TOWNSHIP BOARD OF EDUCATION

          ROBERT MERENICH, ESQ. GEMMEL, TODD & MERENICH, P.A. ATTORNEY FOR DEFENDANTS OFFICER DAVID ALGERI, OFFICER CURT WARE, OFFICER BURNS AND OFFICER DEFAZIO

          OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         I. INTRODUCTION

         This is 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.

         Plaintiff 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.)

         Presently 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.

         The 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.

         II. BACKGROUND

         A. Factual Background [1]

         After 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.)

         When 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.)

         According 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.

         Besides 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.)

         Pursuant 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.)

         On 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.)

         Officer Ware's email to Dr. Scelso stated, in relevant part, as follows:

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 wrestling team.
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 Valentin Rivera.

(Id.)

         Less 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 follows:

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.

(Id.)

         Later 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. (Id.)

         During 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.)

         Also, 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.)

         B. Relevant Policies and Procedures

         1. Memorandum of Agreement Between EHT and ...


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