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Paredes v. Egg Harbor Township Board of Education

United States District Court, D. New Jersey

August 16, 2018

DICKSON HIDALGO PAREDES, et al., Plaintiffs,

          Thomas P. Lutz, Esq. Attorney for Plaintiffs.

          Regina McKenna Philipps, Esq. MADDEN & MADDEN Attorney for Defendants Egg Harbor Township Board of Education & Dr. Alicia K. Scelso.

          Robert P. Merenich, Esq. GEMMEL, TODD & MERENICH, P.A. Attorney for Defendants Officer David Algeri, Officer Curt Ware, Officer Burns, and Officer Defazio.



         I. Introduction

         The instant action arises from the alleged violation of Plaintiff D.V.R.'s (“DVR”) and his father, Plaintiff Dickson Hidalgo Paredes's (“Plaintiff Paredes” or “Paredes”) Fourth Amendment rights by Defendants, Egg Harbor Township (“EHT”) Police Officers Ware, Burns, and Defazio (“the Officer Defendants”), and related claims of violations of DVR's constitutional rights by defendants EHT Board of Education and Dr. Alicia Scelso, the vice principal of DVR's high school (“the Board Defendants”). DVR claims, essentially, that his rights were violated as a result of an incident arising out of the alleged theft of a classmate's (James Bower, Jr.) cell phone, and DVR's subsequent suspension from school in relationship to that incident.

         This matter is currently before the Court on a motion for reconsideration [Docket Item 82] of this court's December 26, 2017 Opinion and Order [Docket Items 80 & 81]. In that opinion, the Court held that DVR did not have a claim for a violation of his Fourth Amendment rights because the EHT Officers did not commit an unconstitutional warrantless entry when they allegedly entered his home without a search warrant. [Docket Item 80 at 30-31.] The Court also held that no reasonable juror could find for Plaintiffs on their other claims as against both the Board Defendants, id. at 16-27, and the Officer Defendants, id. at 27- 33, and granted summary judgment to the Defendants, terminating the case. Id. at 33; Docket Item 81.

         In the instant motion for reconsideration, Plaintiffs argue that the Court misinterpreted the law regarding warrantless entry in analyzing whether summary judgment was appropriate as to Plaintiffs' Fourth Amendment claim. [Docket Item 82-3 at 5-8.] Plaintiffs also press several other grounds for reconsideration (id. at 4-5, 8-17), discussed infra.

         For the reasons stated below, Plaintiffs' motion for reconsideration is granted only as to Plaintiffs' claim of warrantless entry (and search) and unconstitutional seizure under the Fourth Amendment and 42 U.S.C. § 1983. Accordingly, this case shall be reopened and Plaintiffs' warrantless entry (and search) claim and Plaintiff DVR's unconstitutional seizure claim against Defendant Officers Ware, Defazio, and Burns shall be reinstated.[1] In all other respects, Plaintiffs' motion for reconsideration lacks merit and will be denied.

         The Board Defendants filed a cross-motion for sanctions pursuant to Fed.R.Civ.P. 11. [Docket Item 84.] Defendants are correct that the usual proper course of litigation dictates that an appeal be filed when the non-prevailing party merely disagrees with the court's analysis and decision, and that a motion for reconsideration is not usually the most apt vehicle to challenge an unfavorable decision. [Docket Item 84-2 at 62.] Rule 11 sanctions are warranted “only in the ‘exceptional circumstances' where a claim or motion is patently unmeritorious or frivolous.” Watson v. City of Salem, 934 F.Supp. 643, 662 (D.N.J. 1995)(citing Doering v. Union Cty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988)). However, because Plaintiffs' Motion for Reconsideration is granted in part (although not as to any of the claims against the Board Defendants), the Court, in its discretion, denies the Motion for Sanctions at this time.

         The Court will also, in its discretion, deny Plaintiffs' cross-motion for sanctions [Docket Item 86-2 at 1-2], as contained in their Response to the Board Defendants' Motion for Sanctions, because it lacks even colorable merit. See Giles v. Phelan, Hallinan & Schmieg, L.L.P., Civil Action No. 11-6239 (JBS/KMW), 2013 WL 4431274 at *5 (D.N.J. Aug. 14, 2013)(“Imposition of sanctions under Fed.R.Civ.P. 11 is discretionary.”; declining to impose sanctions or cross-sanctions).

         II. Background

         A. Factual Background

         The procedural history and underlying facts of this case are described in detail in the Court's December 26, 2017 opinion, see Paredes v. Egg Harbor Township, Civil Action No. 15-cv-2929 (JBS/JS), 2017 U.S. Dist. LEXIS 211519 (D.N.J. Dec. 26, 2017), and are reviewed herein only to the extent necessary to serve as a context for this motion for reconsideration. The Court presumes familiarity with the factual circumstances as laid out in that Opinion.

         DVR alleges that, on January 9, 2014, he found an iPhone 5 in his gym bag on the way home from wrestling practice. When he got home, he charged the phone, “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.” [Docket Item 80 at 4, citing DVR Dep. 46:1-53:1, 145:2-13.] The phone actually belonged to James Bower, Jr. (“Bower, Jr.”), DVR's teammate on the wrestling team, who discovered that his phone was missing from his locker at the end of practice and reported the missing phone to his coaches. Id. (citations omitted).

         Bower, Jr.'s father, Atlantic City Police Officer James Bower (“Bower”), used a GPS tracking system within the iPhone to trace the phone's location to 106 Glenn Avenue, Egg Harbor Township, New Jersey--Plaintiffs' residence. Id. (citations omitted). Bower and Bower Jr. traveled to the house to retrieve the iPhone. On the way, Bower called Defendant Lt. David Algeri (“Algeri”) (since deceased) of the E.H.T. Police Department and asked for assistance. Bower called Algeri again outside the home and asked for police assistance in order to recover the phone. Algeri called the dispatcher and asked the dispatcher to send a unit to the home in response. Id. at 4-5 (citations omitted).

         It is undisputed that Plaintiff Paredes was not home when Bower and Bower, Jr. came to the house to retrieve Bower, Jr.'s cell phone. It is also undisputed that before any E.H.T. police officers arrived at the home, DVR had already given the cell phone back to Bower and had told Bower that he had flushed the SIM card down the toilet. Id. at 5 (citations omitted).

         In his deposition, DVR testified that that evening, as he was coming out of the home to take out the garbage, Bower and Bower Jr. approached him angrily, whereupon DVR returned the phone to Bower. [Docket Item 63-3 at 87.] Bower told Bower Jr. to call “Dave, ” but when DVR realized Bower Jr. was going to try to use the phone, he told both Bowers that he had flushed the SIM card. [Docket Item 63-3 at 87, 88, 89.] Bower, per DVR, continued to curse at DVR and also put his hands on DVR Id. at 87. Bower grabbed DVR by the wrist and told him to get on the ground; both Bowers expressed concern that DVR would run, which DVR answered, “Why would I run, you're in front of my house.” Id. at 87-88. When Bower told DVR to get on the ground, he also told DVR that they were pressing charges, and DVR “said, for what? You have already got your phone and I didn't steal it. He was like, well, we tracked it down here, blah, blah, blah, this and that. After that, that's when the cops came.” Id. at 88. While they were outside, Bower insisted that DVR keep his hands behind his back and wouldn't let DVR go inside or leave. Id. at 89. DVR could not reach out to anyone for help or wait inside for the police because Bower would not let him: “He told me to get on the floor and if I tried to get up he just told me to get back down.” Id. at 91.

         After approximately fifteen minutes, E.H.T. police officers arrived in two cars. Id. at 92. However, only two of the officers approached DVR and the Bowers; one stayed in one of the police cars. Id. DVR identified the two officers he interacted with as two white men, both with short hair, and one of whom was taller than the other, but other than that could not identify them. Id. After the officers spoke to the Bowers, the taller one approached DVR and wanted his side of the story; DVR had the impression that the officer wanted him to confess. Id. at 92-93. The officer then told DVR that he had a choice, “either you come to jail or get your parents.” Id. at 93. DVR stated that no E.H.T. officer ever touched him that night. Id.

         DVR testified that the only instruction the E.H.T. officers gave him was, “Go get your stepmom”:

When I was going to get them -- well, no. They said we're going to come inside and talk to your step --like, to your guardian, and I said no, I don't want you guys to come in. I want you guys to wait out here. No, no, we want to come in. I was like, I'm telling you guys no, and they were like, we're coming in, just go get your stepmother. And I'm like, I'm not giving you guys the rights to come in. And they were like, go get your stepmother. And then they kept walking. So like, I couldn't just stand there in front of them and hold the door so I was just like whatever, they are inside the house.

Id. at 93. DVR testified that the two officers entered the house and told him to get his stepmother, despite him telling them “multiple times” not to come in the house. Id. at 93-94. His testimony was to the effect that they told him to get his stepmother, then followed closely behind him as he walked towards the house. He expected that they would stop at the door, but when they did not, he told them not to come in; nevertheless, they both entered the house. Id. at 94. DVR testified that he told the police to wait at the door once they were inside, but by the time he retrieved his stepmother and they both went downstairs, the officers were at the foot of the stairs. Id. DVR testified that he could see, from his vantage point upstairs, “them walking around in my house . . . . [T]hem walking around, just looking around.” Id. at 93. DVR reiterated: “They just came into the house. That's all they did. They looked around with their flashlights. That's all they did.” Id. at 96.

         When DVR came down with his stepmother, the officers had a brief conversation with her (with DVR translating into Spanish), saying, effectively, “how they were going to get court papers because they're pressing charges, so they would be in the mail within the next week or two. They were trying to say that they could take [DVR] into custody right now and then have her come get me, but they were going to let me off.” Id. at 95. DVR testified that the conversation took about five minutes:

I had to translate it. I had to stand there and translate it. And they just kept repeating themselves, repeating themselves.
I asked them to leave. They started getting mad with me because I asked them to leave.

Id. at 96. DVR estimated that the officers were inside his house for approximately ten minutes. Id. at 97. DVR also testified that the two officers “kicked [] around” the garbage that Bower had initially emptied inside the garage, looking for the SIM card. Id. DVR reiterated: “The only thing the police did wrong was that you guys walked in without permission and what Bower did wrong was he put me under arrest and went through my trash.” Id. at 101. Although DVR was asked at his deposition regarding the E.H.T. police officers, “They didn't detain you?” he answered, “They didn't tell me anything. They were pretty good to me, honestly. Like AC police, they were -- they caught an attitude with me, but I mean, that's every cop doing their job.” Id. at 102.

         Paredes testified at his deposition that DVR's stepmother (his wife) informed Paredes the next morning that the police had been inside the house. Id. at 144.

         It appears undisputed that when the three E.H.T. police officers (Defendants Ware, Defazio, and Burns) arrived at the home, none of them had spoken to Algeri or Bower before that time. [Docket Item 80 at 5 (citations omitted).]

         In his answers to interrogatories, Defendant Ware denied entering the garage [Docket Item 66-2 at 40] and denied entering the house, stating, “I was at the threshold of an open front door while questioning DVR in the presence of his step-mother.” Id. at 41. Ware also states that Defendant Burns “was [] standing in the driveway” while Ware was “at the threshold of an open front door” and that “[n]o EHT officer entered the garage or the home.” Id. Ware similarly states that Defendant Defazio “was [] standing in the driveway” while Ware was “at the threshold of an open front door” and that “[n]o EHT officer entered the garage or the home.” Id. Ware also stated: “I was at the threshold of an open front door while questioning DVR in the presence of his step-mother. There was no emergency situation or exigent circumstances under these set of facts. I did not require consent to enter the home under these circumstances. I cannot speak for James Bower but I did not see him or any other officer enter the garage or home.” Id. at 43.

         Defendant Defazio likewise denied entering “the garage or, for that matter, the home” at any point. Id. at 47. Defendant Burns answered (verbatim)[2] the same. Id. at 54. Defendants Defazio [Docket Item 66-3 at 12-13] and Burns [id. at 8] also denied entering the home, or that Ware entered the home, at their depositions.

         DVR subsequently prepared a written statement for Defendant Scelso describing what occurred: “[T]he kid and his father came over saying he is a cop. This happened while I was taking out my trash. They walked up to me and made me get on the ground while 1 sat down while he was looking through the trash for the phone when I already gave it to him. The Feds came to my house and I told them what happened, but he only listened to his friend and not me. I called my stepmom. I asked them to stay outside, but just walked in. They talked to my stepmom and said paper would come in and I would most likely have a court day. Then after an hour they left.” [Docket Item 63-3 at 23.]

         Following the incident on January 9, 2014, Defendant Ware sent an email to the E.H.T. High School on January 10, 2014, “concerning the charges against” DVR pursuant to the Memorandum of Agreement between the E.H.T. School District and the E.H.T. Police Department. [Docket Item 80 at 6 (citations omitted).] Defendant Scelso called DVR into her office at approximately 7:40 a.m. to discuss the “issue, ” which was relayed to Scelso to have taken place on school property, after having been alerted to the situation by E.H.T. High School's athletic director, Michael Pellegrino. Id. (citations omitted). DVR told Scelso his version of events, which included that he had been in possession of Bower, Jr.'s cell phone without permission or authority. Id. at 6-7 (citations omitted). Scelso asked DVR to provide a written statement, which he did, at approximately 8:01 a.m. Id. at 7 (citations omitted).

         At approximately 9:31 a.m., Scelso received an email from Defendant Ware about “‘an incident that occurred in the high school on 1/9/14 during wrestling practice.'” Id. (citing Docket Item 66-3 at 20). Ware's email said that a “cell phone was stolen out of a member of the wrestling team[']s locker that was reportedly locked[, ]” that “during the evening of 1/9/14 the phone was located in the possession of a fellow member of the wrestling team” and identified Bower, Jr. as the victim and DVR as “the accused.” Id. Detective Sergeant Fred Spano, E.H.T. police officer and official police liason officer to E.H.T. High School, also emailed Scelso additional information about the incident, including the new information that DVR had “stated that he flushed down the toilet.” [Docket Item 80 at 8 (citations omitted).]

         At approximately 12:00 p.m., Scelso called DVR back into her office and remarked that DVR “had not told her that he removed the iPhone's SIM card and disposed of same. Plaintiff conceded that he did not include that information in the written statement previously provided to Dr. Scelso.” Id. (citations omitted). Scelso then told DVR that he was suspended for four days. Id. Scelso contacted Paredes by phone at approximately 1:29 p.m. to inform him of the suspension. Id. at 9. Scelso also sent a written advisory to the “parent/guardian” of DVR regarding the suspension. Id. (citations omitted).

         Paredes did not ever tell Scelso that he wished to appeal or challenge the suspension; nor did he ever do so. Id. (citations omitted). The School District's Policy on Pupil Records allows for a procedure for a parent or an adult pupil to challenge a student's record (including a record of a suspension) that involves notifying the Superintendent in writing of the challenged issue and waiting for a determination from the Superintendent which is to be transmitted within ten (10) days, provides for a meeting between the district or its designee to discuss the issue if no agreement is reached, and allows for the parent or adult pupil to appeal the decision to the Board or the Commissioner of Education within ten (10) days, which then has twenty (20) days to render a decision; the Board's decision may then further be appealed to the Commissioner pursuant to N.J.S.A. 18A:6-9 and N.J.A.C. 6A:4. Id. at 12-13 (citations omitted).

         B. Procedural Background

         A detailed procedural history of this action is related in the Court's previous Opinion. [Docket Item 80 at 13-14.] The Court presumes the reader's familiarity and recounts only the procedural background to the instant motion.

         The Court's Opinion and Order of December 26, 2017 [Docket Items 80 & 81] resolved Plaintiffs' motion for summary judgment [Docket Item 64], as well as the two summary judgment motions filed by the Defendants [Docket Items 63 & 66].

         Plaintiffs timely filed the instant Motion for Reconsideration. [Docket Item 82.] The Board Defendants filed a Response in Opposition [Docket Item 83] and a Cross-Motion for Rule 11 Sanctions Docket Item 84]. The Officer Defendants filed a Response in Opposition as well. [Docket Item 85.] Plaintiffs filed a Reply/Response in Opposition to the Sanctions motion, wherein they sought sanctions in relation to the Board Defendants' sanctions motion. [Docket Item 86.] The Board Defendants filed a Reply. [Docket Item 87.]

         III. Standard of Review

         Local Civil Rule 7.1 allows a party to seek a motion for reconsideration or reargument of "matter[s] or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked . . . ." Local Civ. R. 7.1(i). Whether to grant a motion for reconsideration is a matter within the Court's discretion, but it should only be granted where such facts or legal authority were indeed presented but overlooked. See DeLong v. Raymond Int'l Inc., 622 F.2d 1135, 1140 (3d Cir. 1980), overruled on ...

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