PAREDES et al v. EGG HARBOR TOWNSHIP BOARD OF EDUCATION et al
Filing
80
OPINION. Signed by Judge Jerome B. Simandle on 12/26/17. (dd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DICKSON HIDALGO PAREDES, and
D.V.R. (A juvenile, by his
parent and guardian, Dickson
Hidalgo Paredes)
Plaintiff(s),
HONORABLE JEROME B. SIMANDLE
Civil Action No.
15-cv-2929 (JBS/JS)
OPINION
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 #15(fictitious names)
Defendants.
APPEARANCES:
Thomas P. Lutz, Esq.
Cornerstone Commerce Center
1201 New Road, Suite 334
Linwood, NJ 08221
Attorney for Plaintiffs Dickson Hidalgo Paredes and
Diomar Valentin Rivera
Regina M. Phillips, Esq.
Madden & Madden, P.A.
108 Kings Highway East, Suite 200
Haddonfield, NJ 08033
Attorneys for Dr. Alicia K. Scelso and the Egg Harbor
Township Board of Education
Robert Merenich, Esq.
Gemmel, Todd & Merenich, P.A.
767 Shore Road
P.O. Box 296
Linwood, NJ 08221
Attorney for Defendants Officer David Algeri, Officer Curt
Ware, Officer Burns and Officer Defazio
SIMANDLE, District 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
2
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 Background1
1
The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to Plaintiff, as
the party opposing Defendants’ motions for summary judgment. The
Court disregards, as it must, those portions of the parties’
statements of material facts that lack citation to relevant record
evidence (unless admitted by the opponent), contain improper legal
argument or conclusions, or recite factual irrelevancies. See
generally L. Civ. R. 56.1(a); see also Kemly v. Werner Co., 151 F.
Supp. 3d. 496, 499 n. 2 (D.N.J. 2015) (disregarding portions of
the parties’ statements of material facts on these grounds); Jones
v. Sanko Steamship Co., Ltd., 148 F. Supp. 3d 374, 379 n. 9
(D.N.J. 2015) (same). The Court notes that Plaintiffs’ “Opposition
to Certain Facts” [Docket Item 71] does not comply with L. Civ. R.
56.1(a), which requires “a responsive statement of material facts,
addressing each paragraph of a [Defendants’] statement, indicating
agreement or disagreement and, if not agreed, stating each
material fact in dispute citing to the affidavits and other
documents submitted in connection with the motion.” Plaintiffs’
submission merely contains 7 objections to the 92 material facts
submitted between both groups of Defendants. Thus, the remaining
85 material facts are deemed undisputed. L. Civ. R. 56.1(a)
3
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
4
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: 25, 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, 62:37.) 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
5
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. 22:410.) 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.)
6
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. 63:911.) 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
7
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
8
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 EHT Police Dept.
The Egg Harbor Township Police Dept. entered into a
memorandum agreement with the Egg Harbor Township School
District which, in relevant part, provides as follows:
Article 5. School Access to Law Enforcement Information
5.1 Statutory Authority to Disclose Information
Law enforcement and prosecuting agencies are required to
advise the principal of the school where the student is
enrolled when:
The offense occurred on school grounds, including on
9
school busses or at school sponsored functions, or was
committed against an employee or official of the school
5.2 Agreement to Disclose Information Following a Charge
Where a juvenile has been charged with an act of
delinquency that if committed by an adult would
constitute a crime or offense, it is requested and
pursuant to the Authority of N.J.S.A. 2A:4A-60d (1) and
(3) that the law enforcement agency or County
Prosecutor's Office shall promptly provide information
as to the identity of the juvenile, the offense charged,
the adjudication and the disposition to (l) the
principal of any school that is the victim offense; (2)
the principal of any school that employs the victim of
the offense; and (3) the principal of any school where
the juvenile is enrolled.
(Pol. Def. Br., Ex. N.)
2. EHT High School Student Handbook
The EHTHS Student Handbook section entitled "Discipline"
explicitly provides that “It is the student's responsibility to
become familiar with all information in the student handbook.”
(Board Def. Br., Ex. K, p. 8.) Moreover, the specific process by
which student discipline may be challenged by a parent is set
forth in the Student Handbook as follows: "If you have a
disagreement with discipline or other matters related to the
school, please follow the appropriate procedure before contacting
the teacher/coach, supervisor, assistant principal."(Id.)2
“Theft” is defined within the Disciplinary Code and the
corresponding discipline is also set forth therein: “Pupils
2
This procedure is also provided in “District Regulation 5600”
of the Pupil Discipline section of the District Policy. (See Board
Def. Br., Ex. L.)
10
illegally possessing school property or the property of others
will receive a minimum of one Saturday Detention and/or up to a
ten (10) day out of school suspension.” (Id. at 25, No. 37.)3
3. EHT School District Student Discipline/Code of Conduct Policy
The Egg Harbor Township School District’ Student
Discipline/Code of Conduct Policy and Regulation is disseminated
annually to all school staff, pupils, and parent(s) or legal
guardian(s). (Board Def. Br., Ex. M.) The District Policy provides
that “every student enrolled in the Egg Harbor Township School
District shall observe the promulgated rules and regulations and
submit to the discipline imposed for infraction of those rules.”
(Id.) The District Policy further provides that any student to be
disciplined “shall be provided the due process procedures for
pupils and their families as set forth in N.J.A.C. 6A:l6-7.2
through 7.6”. (Id.) Pursuant to District Policy 5610, "even the
temporary exclusion of a pupil from the educational program of the
District is a severe sanction and one that cannot be imposed
without due process." (Id.)
According to the District Policy, “Conduct which shall
constitute good cause for suspension or expulsion of a pupil
guilty of such conduct shall include, but not be limited to, the
conduct as defined in N.J.S.A. 18A:37-2 and the school district's
3
The "Chart of Discipline” set forth in District Regulation 5600
also provides for a minimum of one-Saturday Detention and/or up to
a ten (10) day out of school suspension for "theft." (Board Def.
Br., Ex. L.)
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Pupil Discipline/Code of Conduct Policy and Regulation in
accordance with the N.J.A.C. 6A:l6-7.l. et seq.” (Id.) “In each
instance of a short-term suspension, the pupil and their parent(s)
or legal guardian(s) will be provided oral or written notice of
the charges and an informal hearing conducted by the building
Principal or designee in accordance with the procedures outlined
in N.J.A.C. 6A:16-7.2.” (Id.)
4. EHT School District Policy on Pupil Records
The District Policy (District Policy 8330 – Pupil Records)
provides that student records are subject to challenge on the
grounds of "inaccuracy, irrelevancy, impermissive disclosure,
inclusion of improper information or denial of access to
organizations, agencies, and persons in accordance with N.J.A.C.
6A:32-7.7(a).” (Pol. Def. Br., Ex. O.) To request a change in the
record or to request a stay of disclosure pending final
determination of the challenged procedure, the process is as
follows:
1. A parent or adult pupil shall notify the Superintendent in
writing of the specific issues relating to the pupil's
record.
2. Within ten (10) days of notification, the Superintendent or
designee shall notify the parent or adult pupil of the school
district's decision.
3. If the school district disagrees with the request, the
Superintendent or designee shall meet with the parent or
adult pupil to revise the issues set forth in the appeal.
4. If the matter is not satisfactorily resolved, the parent or
adult pupil may appeal this decision either to the Board or
the Commissioner of Education within ten (10) days.
12
5. If appeal is made to the Board, a decision shall be rendered
within twenty (20) days. The decision of the Board may be
appealed to the Commissioner pursuant to N.J.S.A. 18A:6-9 and
N.J.A.C. 6A:4, Appeals.
(Id.)
C. Procedural History
On April 26, 2015, Plaintiffs commenced a civil action
against James Bower, the City Of Atlantic City, Egg Harbor
Township, Egg Harbor Township High School, Egg Harbor Township
Police Dept., New Jersey Atlantic City Police Dept., asserting
various state and federal constitutional rights violation claims
arising out of the abovementioned facts. [Docket Item 1.] On May
02, 2016, James Bower, the City of Atlantic City, Atlantic City
Police Dept., Egg Harbor Township and Egg Harbor Township Police
Dept. were dismissed from this action pursuant to a previous
settlement agreement in which Plaintiffs agreed to withdraw all
civil claims against these parties in exchange for James Bower
withdrawing the criminal complaint against Plaintiff Rivera. [See
Docket Item 37.] Thereafter, Plaintiffs filed an Amended Complaint
naming Defendants Dr. Alicia K Scelso, Officer David Algeri,
Officer Curt Ware, Officer Burns, and Officer Defazio for the
first time. [Docket Item 48.]
On June 1, 2017, Board Defendants Egg Harbor Township Board
of Education and Dr. Scelso filed a Motion for Summary Judgment
pursuant to Fed. R. Civ. P. 56(c). [Docket Item 63.] On the same
date, “Police Defendants,” Officer David Algeri, Officer Curt
Ware, Officer Burns, and Officer Defazio, also filed a separate
13
Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c).
[Docket Item 66.] Additionally, on June 1, 2017, Plaintiffs filed
a motion for summary judgment. [Docket Item 64.] Both groups of
Defendants filed separate opposition briefs to Plaintiffs’ motion
for summary judgment. [Docket Item 77, 78.] The Court notes that
Plaintiffs failed to file an opposition to either the Board
Defendants’ or the Police Defendants’ motions for summary judgment
pursuant to the Federal Rules of Civil Procedure and the District
of New Jersey Local Civil Rules. In fact, in a letter dated July
8, 2017, Plaintiffs’ counsel stated that “as for [his] decision
not to file an opposition brief, [he] submit[s] that no opposition
brief is necessary since [he] [has] presented the entire legal
argument in his initial brief and would be saying nothing
additional in an opposition brief.” [Docket Item 79.] For this
reason, rather than viewing Defendants’ motions for summary
judgment as being unopposed, the Court will simply consider
Plaintiffs’ moving papers to be its opposition to Defendants’
motions for summary judgment. Any statement of material facts
listed in the Defendants’ motion for summary judgment shall,
however, be deemed undisputed unless Plaintiffs have pointed to
evidence in the record that raises such a dispute, in accordance
with L. Civ. R. 56.1(a), which Plaintiffs largely failed to do.
III. DISCUSSION
A. Summary Judgment Standard
At summary judgment, the moving party bears the initial
14
burden of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once a properly supported motion for
summary judgment is made, the burden shifts to the non-moving
party, who must set forth specific facts showing that there is a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). In reviewing a motion for summary judgment, the
court is required to examine the evidence in light most favorable
to the non-moving party, and resolve all reasonable inferences in
that party's favor. Hunt v. Cromartie, 526 U.S. 541, 552 (1999);
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Credibility
determinations are not appropriate for the court to make at the
summary judgment stage. Davis v. Portline Transportes Maritime
Internacional, 16 F.3d 532, 536 n.3 (3d Cir. 1994).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “’need not match, item for item, each piece of
evidence proffered by the movant,’” but must simply present more
than a “mere scintilla” of evidence on which a jury could
reasonably find for the non-moving party. Boyle v. Cnty. of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998)(quoting
Anderson, 477 U.S. at 252).
15
The standard by which the court decides a summary judgment
motion does not change when the parties file cross-motions.
Weissman v. United States Postal Serv., 19 F. Supp. 2d 254 (D.N.J.
1998). When ruling on cross-motions for summary judgment, the
court must consider the motions independently, Williams v.
Philadelphia Hous. Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993),
aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each
motion in the light most favorable to the party opposing the
motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587(1986).
B. Plaintiff’s Claims Against Board Defendants
Though the precise claims asserted against the Board
Defendants in the Amended Complaint are somewhat unclear, the
Court will be guided by the Plaintiffs’ moving papers, which,
according to Plaintiffs’ counsel, presents “the entire legal
argument”. [Docket Items 69; 79.] Plaintiffs claim that Plaintiff
Rivera was deprived of his property right in his education without
due process. (Pl. Br. at 2.) Additionally, Plaintiffs claim that
Defendant Dr. Scelso is liable for Section 1983 constitutional
torts as a result of suspending Plaintiff Rivera pursuant to the
Memorandum of Agreement between Egg Harbor Township School
District and Egg Harbor Township Police Dept., which Plaintiffs
believe to allow “the police report an offense without probable
cause to believe the student actually committed that offense.”
16
(Id. at 7.) Lastly, Plaintiffs assert that Defendant Egg Harbor
Township Board of Education should be enjoined to remove Plaintiff
Rivera’s suspension for a variety of reasons. (Id. at 9-11.)
1. Plaintiff Rivera’s Procedural Due Process Claim
Plaintiff Rivera argues that his right to due process was
violated when Dr. Scelso suspended him without “even a cursory
investigation” of the incident, “without asking the alleged victim
if his phone had been stolen or why he thought it was stolen as
opposed to misplaced” and without “picking up the phone to call
the EHT Police Officers” regarding the allegations. (Pl. Br. at
3.)
As Plaintiffs correctly point out, the U.S. Supreme Court in
Goss v. Lopez, 419 U.S. 565 (1975) held that a state's compulsory
school attendance statute gives a student both a property and
liberty interest in an education and that those rights cannot be
denied without "fundamentally fair procedures to
determine whether the misconduct had occurred." 419 U.S. at 574
575. The Supreme Court's holding in Goss v. Lopez went further in
mandating that, before being suspended, the student must be given
notice (oral or written) of the charges and, if the student denies
the charge, an explanation of the evidence and an opportunity to
present evidence. Id. at 581. However, in order to establish a
procedural due process claim under 42 U.S.C. § 1983, a plaintiff
must have taken advantage of the processes that are available to
him or her, unless those procedures are unavailable or patently
17
inadequate. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). In
other words, “[i]f there is a process on the books that appears to
provide due process, the plaintiff cannot skip that process and
use the federal courts as a means to get back what he wants.” See
Rink v. Ne. Educ. Intermediate Unit 19, No. 16-3183, 2017 U.S.
App. LEXIS 25379, at *40 (3d Cir. Dec. 15, 2017)(nonprecedential); McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir.
1995); Dwyer v. Regan, 777 F.2d 825, 834-35 (2d Cir. 1985),
modified on other grounds, 793 F.2d 457 (2d Cir. 1986); Riggins v.
Board of Regents, 790 F.2d 707, 711-12 (8th Cir. 1986).
In the present case, the Court finds that it is clear that
the Defendant Egg Harbor Township Board of Education had in place
“a process that appears to provide due process” for students, such
as Plaintiff Rivera, who were suspended for alleged misconduct.
Alvin, 227 F.3d 107, 116. The School District policy provided that
“[i]n each instance of a short-term suspension, the pupil and
their parent(s) or legal guardian(s) will be provided oral or
written notice of the charges and an informal hearing conducted by
the building Principal or designee in accordance with the
procedures outlined in N.J.A.C. 6A:16-7.2.” It is undisputed, as
Dr. Scelso testified that she met with Plaintiff Rivera on two
occasions to gather his side of the story regarding the accusation
that he stole another student’s cell phone. (Scelso Dep. 11:812:6, 12:11-14, 16:15-24, 28:2-7.) Dr. Scelso made sure that these
conversations were documented. (Board Def. Br, Ex.’s C & G.)
18
Ultimately, Dr. Scelso exercised her discretion and decided to
suspend Plaintiff Rivera for four days. (Scelso Dep. 66:2-10,
67:17-68:1.) Additionally, Dr. Scelso called Plaintiff Rivera’s
father to inform him that his son would be suspended. (Id. at
26:12-27:2.)
The Court finds that the undisputed facts establish that,
following the imposition of the four-day suspension, Plaintiff
Rivera and his father, Plaintiff Paredes failed to take advantage
of the processes that were available to them to challenge Dr.
Scelso’s decision to suspend Plaintiff Rivera. Alvin , 227 F.3d at
116. Both the EHT Student Handbook and the District Policy outline
a procedure for parents and/or students to challenge a decision
related to the discipline of a student. (See Board Def. Br., Ex.
K, p. 8; Ex. L.) Despite having this established process to
challenge Plaintiff Rivera’s suspension available to them,
Plaintiff Paredes admitted that he never expressed any desire to
Dr. Scelso or any other school administrator to challenge his
son’s suspension. (Paredes Dep. 60:23-25, 69:9-12.) For these
reasons, the Court finds that there is no genuine dispute of
material fact with respect to Plaintiff Rivera’s procedural due
process violation claim; rather, the undisputed facts demonstrate
that Plaintiff Rivera’s substantive due process claim fails as a
matter of law.
2. Plaintiff Rivera’s Substantive Due Process Claims
To the extent that Plaintiff Rivera asserts substantive due
19
process claims against the Board Defendants, the Court finds that
these claims also fail.
To establish a substantive due process claim, a plaintiff
must show that government actors deprived them of a fundamental
property interest and that such deprivation "shocks the
conscience." United Artists Theatre Circuit. Inc. v. Township of
Warrington, PA, 316 F.3d 392, 399-400 (3d Cir. 2003). Only the most
egregious official conduct is conscience-shocking. Eichenlaub v.
Twp. Of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). New Jersey
state courts have applied the identical "shocks the conscience"
standard to claims of substantive due process violations. Rivkin
v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 366 (1996)
(“substantive due process is reserved for the most egregious
governmental abuses against liberty or property rights, abuses
that ‘shock the conscience or otherwise offend . . . judicial
notions of fairness . . . [and that are] offensive to human
dignity.’”).
The Court finds that the record is void of any evidence of
misconduct or abuse committed by the Board Defendants that could
ever be found to “shock the conscience.” Moreover, Plaintiff
Rivera fails to assert any persuasive or cognizable argument that
could establish an act or omission by Board Defendants that would
shock the conscience or are offensive to human dignity. Rivkin, 143
N.J. at 366. In fact, the Court is not convinced that the Board
Defendants did anything that could be considered improper. Simply
20
put, this was a situation where a student, Plaintiff Rivera,
admitted to being in the possession of another student’s valuable
cell phone, taken without that other student’s permission on
school property. Additionally, Plaintiff Rivera admitted to the
police that he took the SIM card out of the phone and flushed it
down the toilet, which is undisputed evidence of his efforts to
avoid detection. This information was relayed to Dr. Scelso.
However, when Plaintiff Rivera initially communicated his version
of the events that took place to Dr. Scelso, he omitted the fact
that he flushed the SIM card down the toilet so it “could not be
tracked”. (Rivera Dep. 46:1-53:1, 145:2-13.) Relying on this
information, Dr. Scelso acted within her discretion and issued a
four-day suspension, a decision that Plaintiff Rivera and his
father, Plaintiff Paredes, failed to challenge. Moreover, Dr.
Scelso made sure to document these conversations and to follow the
processes that the District and the high school had in place, all
of which can be found in the evidentiary record. Upon this record
of theft from a fellow wrestling team member, it would more likely
“shock the conscience” if the Board Defendants took no
disciplinary action to suspend Plaintiff Rivera.
After carefully reviewing the evidentiary record, the Court
also finds that there is no reason to believe that Dr. Scelso’s
decision was arbitrary, capricious or unreasonable. See Quinlan v.
Bd. of Educ., 73 N.J. Super. 40, 47 (App. Div. 1962)(“When [a
Board] has acted within its authority, its actions will not
21
generally be upset unless there is an affirmative showing that its
judgment was arbitrary, capricious or unreasonable.”). Though
Plaintiff asserts various arguments regarding what Dr. Scelso
failed to do, he cites to no authority to support his
interpretation of what Dr. Scelso had a legal obligation to do.4
(Pl. Br. at 7.) For these reasons, the Court finds that there is
no genuine dispute of material fact with respect to Plaintiff
Rivera’s substantive due process violation claim; rather, the
undisputed facts demonstrate that Plaintiff Rivera’s substantive
due process claim fails as a matter of law.
3. Plaintiff Rivera’s Monell Claim
It appears that Plaintiff Rivera argues that the Uniform
Memorandum Agreement between the Egg Harbor Township Police Dept.
and the Egg Harbor Township Board of Education is an official
policy or practice of the Board that “allowed [Dr. Scelso] to
suspend [Plaintiff Rivera] on a mere police email alleging
[Plaintiff Rivera’s] crime without a need for Dr. Scelso to do any
independent inquiry. To the extent that Plaintiff Rivera seeks to
proffer this argument in order to establish a Monell claim, the
Court finds this argument to be unpersuasive and contrary to the
4
A district board of education must follow the procedures set
forth in N.J.A.C. 6A:16-7.2 to "assure the rights of a student"
prior to issuing a suspension to the student for 10 days or less.
Although the requirements of N.J.A.C. 6A:l6-7.2 include an
"informal hearing" with the student to be suspended, they do not
include hearings, interviews or conversations with anyone else,
including but not limited to other students or law enforcement
involved in the underlying incident.
22
evidentiary record.
Local governing bodies, including school boards, “can be sued
directly under § 1983 . . . where . . . the action that is alleged
to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body's officers.” Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658, 690 (1978). This
requirement that the municipal entity must have an official policy
or custom that is unconstitutional means that “a municipality
cannot be held liable solely because it employs a tortfeasor--or,
in other words, a municipality cannot be held liable under § 1983
on a respondeat superior theory.” Id. at 691. The Supreme Court
has “required a plaintiff seeking to impose liability on a
municipality under § 1983 to identify a municipal ‘policy’ or
‘custom’ that caused the plaintiff's injury.” Bd. of Cnty. Comm'rs
of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997).
The Court finds that Plaintiff Rivera has not produced any
evidence to support its argument that the Memorandum of Agreement
infringes upon the civil rights of students, such as Plaintiff
Rivera, “under the aegis of official policy.” It seems that the
crux of Plaintiff Rivera’s argument is that he was suspended from
school as a result of EHTPD reporting to Egg Harbor Township High
School, pursuant to the Memorandum of Agreement, that he committed
an “offense without probable cause to believe the student actually
committed that offense.” (Pl. Br.at 7.) However, the Court finds
23
that Plaintiff’s continuous assertions that there was no probable
cause to suspect that Plaintiff had committed the crime of theft
are simply fictional.
Probable cause exists when, based on the factual
circumstances, a prudent person could believe that a particular
suspect has committed or is committing an offense. See Sharrar v.
Felsing, 128 F. 3d 810, 817-18 (3d Cir. 1997); Islam v. City of
Bridgeton, 804 F. Supp. 2d 190, 197 (D.N.J. 2011). In New Jersey,
a person is guilty of theft if he unlawfully takes, or exercises
unlawful control over, movable property of another with purpose to
deprive him thereof. N.J.S.A. § 2C:20-3 “Theft” is defined within
the EHTHS Disciplinary Code and the corresponding discipline is
also set forth therein: “Pupils illegally possessing school
property or the property of others will receive a minimum of one
Saturday Detention and/or up to a ten (10) day out of school
suspension.” (Board Def. Br., Ex. K., p. 25, No. 37.)
As previously discussed, Plaintiff Rivera, admitted to being
in the possession of another student’s cell phone without that
other student’s permission. Moreover, there is no dispute that the
theft occurred on school property during the wrestling practice,
which became clear to all by the time Dr. Scelso made her
decision. Additionally, Plaintiff Rivera admitted to the police
that he took the SIM card out of the phone and flushed it down the
toilet to avoid detection. Pursuant to the Memorandum of
Agreement, this information was relayed to Dr. Scelso, who acted
24
within her discretion by rejecting Plaintiff Rivera’s unconvincing
justification claiming that he “found” another student’s cell
phone in his bag. That there could be a conceivable innocent
explanation for Rivera’s possession of this iPhone does not
deprive the case of abundant probable cause under the
circumstances. The Court finds that Dr. Scelso’s decision was
reasonable, especially when one considers that Plaintiff Rivera
initially failed to disclose to Dr. Scelso that he flushed the SIM
card of the phone down the toilet. Most importantly, the Court
finds that there was probable cause to suspect that Plaintiff
Rivera committed the crime of theft, and Dr. Scelso was justified
in relying upon the report from the EHTPD officers, sent pursuant
to the Memorandum of Agreement, when making the decision to
suspend Plaintiff Rivera for illegally possessing the property of
another, student Bower’s iPhone.
Because the Court rejects Plaintiff Rivera’s only argument
and underlying “evidence” in support of his Monell claim, as it is
simply not supported by the evidentiary record, the Court finds
that the undisputed facts demonstrate that Plaintiff Rivera’s
Monell claim against the Board Defendants fails as a matter of
law.
4. Plaintiff Rivera’s Claim for Injunctive Relief
Plaintiff Rivera argues that the Court should enjoin the
Board Defendants to remove Plaintiff’s four-day suspension from
his high school discipline file because (1) Dr. Scelso suspended
25
Plaintiff Rivera without any proof of an off-campus offense; (2)
Plaintiff Rivera was suspended on information provided by the
EHTPD in violation of the terms of the Memorandum of Agreement;
(3) the N.J.A.C. has no provision for Plaintiff Rivera’s
suspension based on the destruction of property while off-campus
and in his own home; (4) and, the Board’s Policy #5610 requires
that a suspension record be removed if the student is found
innocent of the charge for which he was previously suspended. (Pl.
Br. at 9-11.) The Court rejects these arguments.
The EHT Board Policy 5160 provides, in part, that "all record
of a suspension will be immediately expunged if the pupil is found
innocent of the charges levied." (Board Def. Br., Ex. G.) The
Court finds that there is no evidence in the record that
establishes that Plaintiff Rivera was found innocent of the crimes
listed in the criminal complaint filed against him by James Bower.
Rather, the evidentiary record clearly indicates that James Bower
simply agreed to withdraw the criminal complaint in exchange for
Plaintiffs withdrawing any civil complaint against Bower. [See
Docket Item 37.] Moreover, the record is void of any evidence that
establishes that any EHT District employee and/or Board member
determined that Plaintiff Rivera was "innocent" of violating the
EHTHS Disciplinary Code by committing a “theft”. Therefore, the
Court finds that there is no basis for the expungement of Rivera's
suspension from his disciplinary record under Policy 5610.
Most directly said, expungement does not lie as a remedy for
26
violation of constitutional rights when no such violation exists.
Additionally, to the extent that Plaintiff Rivera argues that he
is entitled to the requested equitable relief because of the
alleged deprivation of his constitutional due process rights, the
Court finds that Plaintiffs have failed to seek to have the
suspension expunged from Plaintiff Rivera’s record, a remedy
available under District Policy 8330. (Pol. Def. Br., Ex. O.)
There also are no allegations that the processes for appeal or
record expungement afforded by the EHTHS Handbook, District policy
and/or New Jersey law were inadequate or somehow unavailable to
plaintiff. Alvin, 227 F.3d at 116. Lastly, as previously
discussed, Plaintiff Rivera’s arguments with regard to the
Memorandum of Agreement between the EHTPD and the EHT School
District are without merit, as they completely ignore the evidence
in the record and are not supported by any legal authority.
For the abovementioned reasons, the Court finds that the
undisputed facts demonstrate that Plaintiff Rivera’s claim seeking
to enjoin Board Defendants to remove Plaintiff Rivera’s suspension
from his student discipline file fails as a matter of law. The
Board Defendants’ motion for summary judgment will be granted.
C. Plaintiffs’ Claims Against Police Defendants
Though the precise claim(s) asserted against the Police
Defendants in the Amended Complaint are somewhat unclear, the
Court will be guided by the Plaintiffs’ moving papers, which,
according to Plaintiffs’ counsel, presents “the entire legal
27
argument”. [Docket Items 69; 79.] Plaintiffs argue that the Police
Defendants are liable under 42 U.S.C. § 1983 because they acted
jointly with Atlantic City Police Officer James Bower when they
entered into the home of Plaintiff Paredes without a search
warrant, in violation Plaintiffs’ Fourth and Fifth Amendment
rights. (Pl. Br. at 2-6.) The Court must determine whether there
are any genuine disputes of material facts with regard to
Plaintiffs’ § 1983 claims against Police Defendants.
1. Plaintiffs’ § 1983 Claims Against Police Defendants
To state a § 1983 claim, a plaintiff must plead two essential
elements: (1) the conduct complained of was committed by a person
acting under color of state law; and (2) the conduct deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States. Natale v. Camden County
Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). A private
citizen may be liable under § 1983 if they were acting under color
of state law or "jointly engaged with state officials in the
prohibited action." Harvey v. Plains Twp. Police Dep't, 421 F.3d
185, 195 (3d Cir. 2005) (quoting United States v. Price, 383 U.S.
787, 794 (1966)). "[T]he inquiry is whether there is a
sufficiently close nexus between the State and the challenged
action of the private party so that the action of the latter may
be fairly treated as that of the State itself." Id. A private
actor must be at least a "willful participant in joint activity
with the State or its agents."
28
Here, Plaintiffs attempt to utilize the “joint participation”
theory in order to impose § 1983 liability on the Egg Harbor
Township Police Officers, the Police Defendants, for allegedly
jointly engaging in prohibited action with James Bower by
“enter[ing] Plaintiffs’ property, detain[ing] [Plaintiff Rivera],
interrogat[ing] [Plaintiff Rivera], and restrict[ing] [Plaintiff
Rivera’s] freedom of movement to an extent that a virtual arrest
occurred,” in violation of Plaintiff Rivera’s Fourth and Fifth
Amendment rights.(Pl. Br. at 6) (citing Harvey v. Plains Twp.
Police Dep't, 421 F.3d 185, 195 (3d Cir. 2005)). However, the
Court finds that Plaintiffs’ arguments are not supported by the
evidentiary record and that the Police Defendants’ are entitled to
judgment as a matter of law.
First, it is undisputed that none of Egg Harbor Township
Police officers that were dispatched to Plaintiffs’ home, the
Police Defendants, had spoken to James Bower prior to arriving to
the scene. [Docket Item 66-1, ¶ 12.] In fact, the only Defendant
that spoke to James Bower was Defendant Officer David Algeri, who
never went to Plaintiffs’ home. (Id.) Further, it is undisputed
that none of the responding officers, Officer Curt Ware, Officer
Burns, and Officer Defazio, spoke to Officer David Algeri prior to
arriving to the scene. (Id. at ¶13.) Thus, Plaintiff’s attempt to
impute the actions of James Bower onto Defendants Officer David
Algeri, Officer Curt Ware, Officer Burns, and Officer Defazio has
no basis, as there is nothing in the record that suggests that
29
James Bower was acting in accordance with or at the direction of
any of the Egg Harbor Township police officers.
Moreover, there is no dispute that the Egg Harbor Township
Police officers were acting under the color of state law when they
arrived to Plaintiffs’ residence on January 9, 2014. [Docket Item
66-1, ¶ 8.] It is also undisputed that James Bower had recovered
his son’s cell phone from Plaintiff Rivera and realized that the
SIM card was missing prior to Officer David Algeri, Officer Curt
Ware, Officer Burns, and Officer Defazio arriving to Plaintiffs’
home. (Rivera Dep. 153:2-5, 164:1-4.) Though there appears to be a
factual dispute as to whether the police officers entered
Plaintiffs’ home, the Court finds the precise time of arrival to
be immaterial.
Once the EHT police officers arrived to the scene and learned
that Plaintiff Rivera was in the possession of a cell phone that
did not belong to him and that Plaintiff Rivera flushed the SIM
card, the officers had probable cause5 to arrest Plaintiff Rivera
5
The Fourth Amendment prohibits police from making an arrest
except “upon probable cause, supported by Oath or affirmation.”
U.S. Const. amend. IV. Far from demanding proof of guilt beyond a
reasonable doubt, “[p]robable cause exists if there is a 'fair
probability' that the person committed the crime at issue.” Wilson
v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (quoting Sherwood v.
Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)). Put another way,
“probable cause to arrest exists when the facts and circumstances
within the arresting officer's knowledge are sufficient in
themselves to warrant a reasonable person to believe that an
offense has been or is being committed by the person to be
arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir.
1995). The probable cause standard thus provides individuals
protection “against unreasonable searches and seizures,” U.S.
Const. amend. IV, while simultaneously enabling investigating
30
for committing the crime of theft.6
Thus, the officers would have
been justified in entering the Plaintiffs’ home. See United States
v. Santana, 427 U.S. 38 (1976)(holding that when the police have
probable cause to arrest a suspect, and when that suspect is
standing in the doorway of her home, the police are justified in
pursuing the suspect into her home when she retreats therein after
the police identify themselves, even if the police do not have a
warrant for the suspect's arrest); see also Panarello v. City of
Vineland, 160 F. Supp. 3d 734, 753 (D.N.J. 2016). However, as the
record indicates, the EHT police officers decided not to arrest
Plaintiff Rivera. Rather, they asked to speak to Plaintiff
Rivera’s stepmother to inform her of the situation that her
juvenile stepson was in. (Rivera Dep. 14:5-9.) In fact, Plaintiff
Rivera testified that the officers told his stepmother that “they
could [have] take[n] [him] into custody right [then] and then have
her come get [him], but they were going to let [him] off.” (Id. at
183:15-25.) Having found that officers were justified in entering
Plaintiffs’ home, the Court finds that the Police Defendants did
not violate Plaintiffs’ Fourth Amendment rights.
officers to act quickly—before necessarily obtaining evidence
sufficient to prove guilt beyond a reasonable doubt—to effect an
arrest. “[T]he standard does not require that officers correctly
resolve conflicting evidence or that their determinations of
credibility, were, in retrospect, accurate.” Wright v. City of
Phila., 409 F.3d 595, 603 (3d Cir. 2005).
6
In New Jersey, a person is guilty of theft if he unlawfully
takes, or exercises unlawful control over, movable property of
another with purpose to deprive him thereof. N.J.S.A. § 2C:20-3
31
With regard to Plaintiff Rivera’s purported Fifth Amendment
violation claim, Plaintiff Rivera argues that “Officer Ware failed
to intervene, and advise [Plaintiff Rivera] of his Fifth Amendment
right against self-incrimination.” (Pl. Br. at 6.) However, there
is no viable claim or remedy for a Miranda violation other than to
have the alleged self-incriminating statement suppressed. Riddick
v. Leh, Civ. No. 96-3975, 1997 U.S. Dist. LEXIS 10116, at *12
(E.D. Pa. July 15, 1997)(“the remedy for a violation of a
suspect's Miranda rights is the exclusion from evidence of any
compelled self-incrimination, not a civil rights action under 42
U.S.C. § 1983”).
Finally, to the extent that Plaintiff Rivera seeks to assert
a § 1983 claim against Police Defendants for false arrest, the
Court finds that the deposition testimony of Plaintiff Rivera
clearly indicates that Plaintiff Rivera was not arrested or
restrained; rather, Plaintiff Rivera was merely informed that
Bower would be pressing charges and that Plaintiff Rivera could
expect a summons in the mail within the following two weeks.
(Rivera Dep. 183:17-21.) Notably, Plaintiffs do not dispute that
the EHT officers specifically indicated to Plaintiff Rivera that
they were not going to arrest him and "take him to court" because
he was already home. [Docket Item 66-1, ¶ 23.](Rivera Dep. 189:1625.) Plaintiffs fail to argue how this interaction amounts to an
arrest. Therefore, the Court finds that Plaintiff Rivera cannot
establish a claim for false arrest, as there is no factual dispute
32
as to whether Plaintiff Rivera was ever arrested by the Police
Defendants. See Colbert v. Angstadt, 169 F.Supp. 2d 352, 358-59
(E.D. Pa. 2001) (holding that a plaintiff could not establish a
false arrest claim where he was not formally arrested but received
a summons by mail, instructing him to appear in court on a
particular date).
Because Plaintiffs have failed to establish that Defendants
Officer David Algeri, Officer Curt Ware, Officer Burns, and
Officer Defazio engaged in conduct that “deprived the plaintiff[s]
of a right, privilege, or immunity secured by the Constitution or
laws of the United States”, the Court finds that Plaintiffs’ §
1983 claims against these Defendants fail as a matter of law.
Natale v. Camden County Corr. Facility, 318 F.3d 575, 580-81 (3d
Cir. 2003)
IV. CONCLUSION
For the aforementioned reasons, the Board Defendants’ motion
for summary judgment will be granted. Additionally, Police
Defendants’ motion for summary judgment will be granted.
Accordingly, Plaintiff’s motion for summary judgment will be
denied. An appropriate order follows.
December 26, 2017
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
33
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