United States District Court, D. New Jersey
P. Lutz, Esq. Attorney for Plaintiffs.
McKenna Philipps, Esq. MADDEN & MADDEN Attorney for
Defendants Egg Harbor Township Board of Education & Dr.
Alicia K. Scelso.
P. Merenich, Esq. GEMMEL, TODD & MERENICH, P.A. Attorney
for Defendants Officer David Algeri, Officer Curt Ware,
Officer Burns, and Officer Defazio.
OPINION UPON RECONSIDERATION
B. SIMANDLE U.S. DISTRICT JUDGE.
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
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.
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
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. In all other
respects, Plaintiffs' motion for reconsideration lacks
merit and will be denied.
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.
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).
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.
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.
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).
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
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.
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
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.
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
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.
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.
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).]
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.
Defazio likewise denied entering “the garage or, for
that matter, the home” at any point. Id. at
47. Defendant Burns answered (verbatim) 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.
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.]
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
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).]
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).
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
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.
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
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.]
Standard of Review
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