PAREDES et al v. EGG HARBOR TOWNSHIP BOARD OF EDUCATION et al
Filing
88
OPINION UPON RECONSIDERATION. Signed by Judge Jerome B. Simandle on 8/16/2018. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DICKSON HIDALGO PAREDES, et
al.,
HONORABLE JEROME B. SIMANDLE
Plaintiffs,
Civil Action No.
15-2929 (JBS/JS)
v.
OPINION UPON RECONSIDERATION
EGG HARBOR TOWNSHIP BOARD OF
EDUCATION, et al.,
Defendants.
APPEARANCES:
Thomas P. Lutz, Esq.
1201 New Road
Suite 334
Linwood, NJ 08221
Attorney for Plaintiffs
Regina McKenna Philipps, Esq.
MADDEN & MADDEN
108 Kings Highway East
Suite 200
P.O. Box 210
Haddonfield, NJ 08033
Attorney for Defendants Egg Harbor Township Board of
Education & Dr. Alicia K. Scelso
Robert P. 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
1
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-
2
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 58.] 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
1
Plaintiffs shall not be permitted to continue to pursue DVR’s
claim that he was arrested without probable cause, however, as
the Court’s determination that probable cause existed as a
matter of law remains in effect and is no longer a fact in
dispute. See Fed. R. Civ. P. 56(g).
3
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 crosssanctions).
II.
Background
4
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
5
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
6
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.
7
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:
8
“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
9
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
10
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
I 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
2
But see Docket Item 66-3, Deposition of Defendant Burns, at 8
(“Q: . . . Did you ever look at the other officers’ answers to
the plaintiffs’ Requests for Admissions? A: No. Q: When you were
doing your answers, I don’t want to know what you said to your
attorney, but did you answer these questions in the presence of
your attorney? A: Yes. Q: And did you finish them and sign them
in front of your attorney? A: No. Q: What I really want to ask
is did any of the other police officers tell you what they were
going to put in their answers or suggest to you what you should
put in your answers? A: No.”).
11
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
12
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
13
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,
14
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 other grounds by Croker v. Boeing Co., 662
F.2d 975 (3d Cir. 1981); see also Williams v. Sullivan, 818 F.
Supp. 92, 93 (D.N.J. 1993).
To prevail on a motion for reconsideration, the movant must
show:
(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when
the court ... [rendered the judgment in question]; or (3)
the need to correct a clear error of law or fact or to
prevent manifest injustice.
U.S. ex rel. Shumann v. Astrazeneca Pharm. L.P., 769 F.3d
837, 848-49 (3d Cir. 2014) (citing Max's Seafood Café ex rel.
Lou—Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
15
1999)). The standard of review involved in a motion for
reconsideration is high and relief is to be granted
sparingly. U.S. v. Jones, 158 F.R.D. 309, 314 (D.N.J.
1994). "The Court will grant a motion for reconsideration only
where its prior decision has overlooked a factual or legal issue
that may alter the disposition of the matter. The word
'overlooked' is the operative term in the Rule." Andreyko v.
Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478 (D.N.J.
2014) (internal citations and quotation marks omitted). Mere
disagreement with the Court's decision is not a basis for
reconsideration. U.S. v. Compaction Sys. Corp., 88 F. Supp. 2d
339, 345 (D.N.J. 1999).
IV.
Discussion
A. Warrantless Entry & Unconstitutional Seizure
Plaintiffs argues that reconsideration is appropriate
because the Court overlooked and misinterpreted the law
concerning warrantless entry in holding that summary judgment
was appropriate as to Plaintiffs’ Fourth Amendment claim because
the Defendant EHT Officers, as alleged, lawfully entered his
home without a warrant. In particular, Plaintiffs argue that the
Court misinterpreted the application of U.S. v. Santana, which
allows for police officers to perform a warrantless entry into a
home when they begin “hot pursuit” of a suspect in a public
16
place and have probable cause to arrest the suspect who has
retreated therein. See 427 U.S. 38, 43 (1976). Although the
warrantless entry claim had been properly raised in the Amended
Complaint, it was not thoroughly briefed by either Plaintiff or
Defendants in their respective filings. However, because the
warrantless entry claim is not being raised for the first time
in Plaintiffs’ motion for reconsideration, the Court can
consider this argument based on the existing law concerning
warrantless entry.
In this case, Plaintiffs do not argue that there has been
an intervening change in the law or that there is new evidence
that was unavailable when the Court decided the underlying
motion for summary judgment. Therefore, the only remaining basis
for reconsideration is the need to correct a clear error of law
or fact present in the court’s previous opinion. To establish
the need to correct a clear error of law or fact, the movant
must show that "dispositive factual matters or controlling
decisions of law were brought to the court's attention but not
considered." P. Schoenfeld Asset Management LLC v. Cendant
Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001) (internal
quotations and citations omitted). Mere disagreement with the
Court's determination is not a basis for
reconsideration. Compaction Sys. Corp., 88 F. Supp. 2d at 345.
17
Here, Plaintiffs’ main argument is that the Court
misinterpreted Santana and extended its holding too broadly. The
Court agrees. “It is a basic principle of Fourth Amendment law
that searches and seizures inside a home without a warrant are
presumptively unreasonable.” Brigham City v. Stuart, 547 U.S.
398, 403 (2006)(internal quotations omitted). See also Coolidge
v. New Hampshire, 403 U.S. 443, 474-75 (1971)(same). The Fourth
Amendment is intended to protect “the sanctity of a man’s home
and the privacies of life.” Payton v. New York, 445 U.S. 573,
584 (1980) (citing Boyd v. U.S., 116 U.S. 616, 630 (1886)).
“Because the home is accorded the full range of Fourth Amendment
protections, it is beyond question that an unconsented police
entry into a residential unit, be it house, apartment, or hotel
or motel room, constitutes a search[.]” W.R. LaFave et al., 2
Criminal Procedure, § 3.2(c)(2d ed. 1999).3 Unless exigent
circumstances reasonably exist, police officers may not conduct
a warrantless entry into a suspect’s home. Ray v. Twp. of
Warren, 626 F.3d 170, 177 (3d Cir. 2010). Such exigent
circumstances, under which the need for effective law
3
“Of course, a police officer’s mere entry or trespass into a
home without consent is enough to constitute a search, often
referred to in the case law as an ‘unlawful entry.’ . . . [A]
police officer possesses sensory capabilities, i.e., the ability
to obtain information.” Reeves v. Churchich, 484 F.3d 1244, 1258
(10th Cir. 2007)(citing Brigham City, 547 U.S. at 401-05; U.S.
v. Najar, 451 F.3d 710, 719-20 (10th Cir. 2006); U.S. v. Carter,
360 F.3d 1235, 1238, 1241 (10th Cir. 2004)).
18
enforcement overcomes the right to privacy, include “hot pursuit
of a suspected felon, the possibility that evidence may be
removed or destroyed, and danger of the lives of officers or
others.” U.S. v. Coles, 437 3d 361, 366 (3d Cir. 2006) (internal
citations omitted).
Santana, which was decided before Payton, demonstrated one
such exigent circumstance, “hot pursuit,” when the police were
held to have lawfully entered a home (without a warrant) while
continuing their pursuit of a suspect, whom they had probable
cause to arrest, after the pursuit began in what was deemed to
be a public place. Santana, 427 U.S. at 43.
Furthermore, “application of the exigent-circumstances
exception in the context of a home entry should rarely be
sanctioned when there is probable cause to believe that only a
minor offense . . . has been committed.” Welsh v. Wis., 466 U.S.
740, 753 (1984). “The general rule is that the warrantless entry
into a person’s house is unreasonable per se. See Payton[], 445
U.S. [at] 586[.]” U.S. v. Price, 558 F.3d 270, 277 (3d Cir.
2009). See also Joyce v. City of Sea Isle City, No. 045345(RBK), 2008 WL 906266, at *15 (D.N.J. Mar. 31, 2008)(“In the
absence of exigent circumstances, the ‘firm line at the entrance
to the house . . . may not reasonably be crossed without a
warrant,’ even if the police have probable cause that the person
committed a crime.”)(citing Payton, 445 U.S. at 590).
19
In Plaintiffs’ response to the original motion for summary
judgment, they raised a claim of unlawful entry under the Fourth
Amendment [Docket Item 69 at 6] and the evidentiary record
pointed to a genuine dispute of material fact as to whether
Defendant Officers Ware, Defazio, and Burns in fact entered
DVR’s home. [See, e.g., Docket Items 63-3 at 93-96; 66-2 at 4043.]
Here, under Plaintiffs’ factual version, the Defendant
Officers’ alleged warrantless entry did not involve exigent
circumstances that would necessitate their entrance into the
home. Exigent circumstances, as noted in Coles, include hot
pursuit, the possible destruction or removal of evidence, or
imminent danger to life. None of these, nor analogous other
circumstances, existed in Plaintiffs’ case. The Egg Harbor
Township officers knew, before they allegedly entered the house,
that DVR had returned the cell phone, and DVR had already
admitted to flushing the phone’s SIM card. As such, the officers
had no reason to believe that DVR entered (or remained within)
his home to destroy or remove further evidence. Furthermore,
there was no reason to believe that anyone’s life was in danger
or that the Defendant Officers allegedly followed DVR into his
home in “hot pursuit.” Regardless, per Welsh, an exigentcircumstances exception is unlikely to apply since theft of a
cell phone--since returned, no less--is a minor offense. Cf.
20
Hopkins v. Bonvicino, 573 F.3d 752, 768 (9th Cir. 2009)(“Even if
the officers had probable cause that Hopkins had been driving
under the influence (and even if that would have been sufficient
for entry into his home pursuant to a warrant, more is required
to justify a warrantless entry into his house.”)(emphasis in
original).
Moreover, the Officer Defendants did not argue for some
other exception to the warrant requirement of the Fourth
Amendment in their moving papers for summary judgment, e.g.,
consent. Accordingly, the Court finds no alternative grounds for
granting summary judgment in favor of the Defendant Officers on
Plaintiff’s warrantless-entry Fourth Amendment claim. Material
facts are in dispute regarding the alleged warrantless entry,
and this dispute cannot be resolved on summary judgment.
Therefore, the Court finds that Plaintiffs adduced
sufficient evidence to allow a reasonable finder of fact to
conclude that the Officers Ware, Defazio and/or Burns entered
DVR’s house without a warrant and in violation of the Fourth
Amendment and § 1983. Such a claim may go forward as to DVR as
well as to Plaintiff Paredes, although Plaintiff Paredes was
undisputedly not present at the time of the incident. See, e.g.,
O’Donnell v. Brown, 335 F. Supp.2d 787, 819 n.15 (plaintiffs’
“Fourth Amendment claim is . . . for unlawful entry of their
home, and this is a claim they may assert because they have a
21
privacy interest in their home, whether or not they were present
at the time of the entry. See, e.g., Michigan v. Clifford, 464
U.S. 287, 295 (1984).”); Brower-McLean v. City of Jersey City,
No. 05-5150 (PGS), 2008 WL 4534062, at *8 (D.N.J. Oct. 6,
2008)(same).4 The Court’s prior Opinion granting summary judgment
to the Defendants Ware, Defazio, and Burns on this claim is
therefore vacated and their motion for summary judgment as to
this claim of warrantless entry without consent is likewise
denied. Genuine disputes of material fact exist as to whether
Defendants Ware, Defazio, and Burns violated the Fourth
Amendment rights of DVR and/or Plaintiff Paredes to be free from
unreasonable searches by entering their home without a warrant
and without exigent circumstances, notwithstanding that they had
probable cause to arrest DVR for a crime.5
The Court next turns to Plaintiff DVR’s claim of false
arrest. Fourth Amendment claims based on seizure of the person
are subject to analysis via “a three-step process”: first,
whether the plaintiff “was seized”; second, “whether that
seizure violated the Fourth Amendment’s prohibition against
unreasonable seizures”; and third, “which of the defendants, if
4
See also Bumper v. North Carolina, 391 U.S. 543, 548 n.11
(1968)(criminal defendant had standing to challenge search based
on his grandmother/co-tenant’s purported consent, although he
was not present).
5 See Section IV.C., infra.
22
any, may be held liable[.]” Berg v. Cty. of Allegheny, 219 F.3d
261, 269 (3d Cir. 2000).
The Court does not agree, as Plaintiffs urge in the Motion
for Reconsideration [Docket Item 82 at 5-6], that the Officer
Defendants lacked probable cause to arrest DVR for theft or a
related offense; accordingly, the Officer Defendants also had
justification to seize DVR in a less intrusive fashion than
formal arrest, i.e., by restricting his freedom of movement.6
However, this does not end the inquiry.
Just as warrantless entries into the home are prohibited,
so too are warrantless arrests made inside the home absent
exigent circumstances or consent. See Welsh, 466 U.S. at 749
(“warrantless . . . arrests in the home are prohibited by the
Fourth Amendment, absent probable cause and exigent
circumstances”)(emphasis added)(citing Payton, 445 U.S. at 58390).
6
See Terry v. Ohio, 392 U.S. 1, 19 n.16 (seizure under Fourth
Amendment occurs “when the officer, by means of physical force
or show of authority, has in some way restrained the liberty of
a citizen”); Florida v. Bostick, 501 U.S. 429, 436-37
(1991)(where person’s freedom of movement is “restricted by a
factor independent of police conduct[,]” the “appropriate
inquiry is whether a reasonable person would feel free to
decline the officers’ requests or otherwise terminate the
encounter” or whether “the police conduct would ‘have
communicated to a reasonable person that he was not at liberty
to ignore the police presence and go about his business.’
[Michigan v.] Chesternut, 486 U.S. [567,] 569 [(1988)].”)
23
As the Court stated in Welsh:
Before agents of the government may invade the
sanctity of the home, the burden is on the government
to demonstrate exigent circumstances that overcome the
presumption of unreasonableness that attaches to all
warrantless home entries. See Payton[], 445 U.S. at
586 . . . . When the government’s interest is only to
arrest for a minor offense, that presumption of
unreasonableness is difficult to rebut[.]
466 U.S. at 750. Moreover, the Third Circuit has stated
explicitly that “a warrantless seizure in a person’s home
violates the Fourth Amendment unless both probable cause and
exigent circumstances are present[,]” (rather than simply a
warrantless arrest). Est. of Smith v. Marasco, 318 F.3d 497, 518
(3d Cir. 2003)(emphasis added).7
The Court does not alter or modify its previous holding
that the evidence adduced at summary judgment does not create a
genuine dispute of material fact that DVR was arrested by the
Officer Defendants, nor that DVR was ever placed into formal
custody as a result of the allegations and this incident, see
Docket Item 80 at 32-33, citing Colbert v. Angstadt, 169 F.
Supp. 2d 352, 358 (E.D.Pa. 2001)(plaintiff “was not formally
7
But see Cronin v. West Whiteland Twp., 994 F. Supp. 595, 601-02
(E.D.Pa. 1998)(noting “an important distinction in Fourth
Amendment jurisprudence--that between a warrantless entry into
the home and a warrantless arrest once inside the home” and
holding, based on Sheik-Abdi v. McClellan, 37 F.3d 1240, 1245-46
(7th Cir. 1994), that “once a peace officer has entered the home
lawfully [e.g., for another reason,] he or she may execute an
arrest upon probable cause without a warrant, as if the arrest
was executed in a public place”).
24
arrested” nor experienced “a restraint on freedom of movement of
the degree associated with a formal arrest” for purposes of
state “false arrest” claim where he “was not handcuffed,
fingerprinted, or taken to the police station, and . . . did not
receive a citation” but rather “[l]ater . . . received a summons
in the mail, giving him a date to appear in court. No bond was
posted and no warrant was required to secure his
appearance.”)(citations omitted). The Court’s prior grant of
summary judgment to the Defendant Officers on DVR’s claim that
they arrested him without probable cause is not vacated; the
findings that the Officer Defendants had probable cause and that
they did not formally arrest DVR remain in effect as a matter of
law. See Fed. R. Civ. P. 56(g).8
However, the Court finds that the evidence earlier adduced
does create a genuine dispute of material fact as to whether DVR
was temporarily seized by the Officer Defendants pursuant to a
warrantless entry inside his home in some lesser fashion, i.e.,
had his freedom of movement restrained upon the Officer
Defendants engaging in conduct that would have communicated to a
reasonable person in DVR’s position that he was not free to
8
“Failing to Grant All the Requested Relief. If the court does
not grant all the relief requested by the motion, it may enter
an order stating any material fact -- including an item of
damages or other relief -- that is not genuinely in dispute and
treating the fact as established in the case.” Fed. R. Civ. P.
56(g).
25
“ignore the police presence and go about his business.”
Chesternut, 486 U.S. at 569.
Plaintiffs’ original motion for summary judgment identifies
this claim [Docket Item 69 at 8], albeit less than clearly pins
it to the specific conduct of the E.H.T. Officers at the time
that they were allegedly inside the home. However, the
evidentiary record before the Court contains DVR’s testimony
that the officers, in response to DVR asking them to leave,
instead “started getting mad with me because I asked them to
leave.” [Docket Item 63-3 at 96.] This is sufficient, to the
Court’s mind, to suggest that DVR’s freedom of movement was
restrained inside the house, because he was not free to
terminate the encounter; when he tried to terminate the
encounter, he testified, the police instead “started getting
mad” with him.
The place of the alleged detention makes a difference; if
there has been a warrantless entry into the plaintiff’s home
(lacking exigent circumstances or consent) and the police have
detained plaintiff therein by meaningfully restraining his
movement, the temporary seizure of the plaintiff crosses the
constitutional line protecting the threshold of his home. The
Court notes some tension in applying Payton to revive Plaintiff
DVR’s unconstitutional seizure claim where, as here, there was
probable cause to arrest but no arrest actually ensued. Payton
26
reflects the considered view that the Fourth Amendment’s warrant
requirement must be honored, particularly with respect to police
conduct inside the home. That said, it is not self-evidently the
case that the Officer Defendants could have applied to a neutral
and detached magistrate for a warrant to conduct a lesser
seizure (e.g., a Terry stop) inside DVR’s home, and so there is
something of a conceptual leap in extending Payton’s bar on
warrantless arrests inside the home (because officers could have
and should have sought a warrant) to a seizure inside the home
where, arguably, officers could not reasonably have sought a
warrant.
Nevertheless, the Court is persuaded that reviving
Plaintiff DVR’s unconstitutional seizure claim by vacating the
grant of summary judgment to the Officer Defendants on that
claim is the best course of action. This holding does not, of
course, grant summary judgment to Plaintiffs on such claim, and
a finder of fact is free, in due course, to find that the
Officer Defendants did not unconstitutionally seize DVR inside
the home. Whether a constitutional violation for seizing DVR
inside the home occurred will, of course, depend upon Plaintiffs
first proving a warrantless entry without consent or exigent
circumstances.
The wisdom of “extending” Payton to a seizure inside the
home that falls short of a formal arrest is clear, to this
27
Court, from several decisions in the Circuit courts that have
held plainly that “the usual rules pertaining to Terry stops do
not apply in homes.” U.S. v. Martinez, 406 F.3d 1160, 1165 (9th
Cir. 2005). See U.S. v. Myers, 308 F.3d 251, 258 (3d Cir.
2002)(“Terry has never been applied inside a home.”).9 Moreover,
at least two Circuits have pointed out that not applying Payton
to seizures that amounted to less than a full arrest would have
the effect of protecting people against whom the police have
probable cause more than those people against whom the police
only have a reasonable and articulable suspicion of wrongdoing-thereby affording less protection to those who are comparatively
more likely to be innocent.10
9
See also Moore v. Pederson, 806 F.3d 1036, 1039 (11th Cir.
2015)(“[I]n the absence of exigent circumstances, the government
may not conduct the equivalent of a Terry stop inside a person’s
home.”); U.S. v. Crapser, 472 F.3d 1141, 1149 (9th Cir.
2007)(“Our cases establish that Terry does not apply inside a
home”)(emphasis in original); Sledge v. Stoldt, 480 F. Supp. 2d
530, 534 n.5 (D. Conn. 2007)(“Terry . . . does not provide an
exception to the requirement that an officer must obtain a
warrant to enter an individual’s home to detain the individual
or arrest the individual”); Wilson v. Jara, 866 F. Supp. 2d
1270, 1290 (D.N.M. 2011)(“The Tenth Circuit has repeatedly held
that, absent exigent circumstances, official acting under the
color of authority and without a warrant may not seize a person
inside their home, or effect a seizure by ordering a person
inside a home to come to the door”)(emphasis added; citations
omitted).
10 See U.S. v. Saari, 272 F.3d 804, 809 (6th Cir. 2001)(“Payton’s
holding that warrantless seizures of persons in their homes
violate the Fourth Amendment, absent exigent circumstances,
applies to this case regardless of whether the officers at issue
were conducting an arrest or an investigatory detention.
Additionally, if the Court accepted the Government’s legal
28
The Court notes that many decisions have described a
finding of a lack of probable cause to be a necessary
prerequisite for success on a “false arrest” claim under the
Fourth Amendment and § 1983; conversely, the existence of
probable cause has been described as a “complete defense” to a
Fourth Amendment false arrest claim. See, e.g., Safa v. City of
Phila., No. 2:13-cv-5007-DS, 2015 WL 3444264, at *10 (E.D.Pa.
May 29, 2015)(“in a Section 1983 claim of unlawful (or false)
argument, it would have the effect of providing lesser
protection to individuals in their homes when the police do not
have probable cause to arrest. It would defy reason to hold, as
the Government suggests, that a warrantless in-home seizure is
authorized to further an investigation, but that either a
warrant or exigent circumstances are necessary when officers
have the probable cause and intent to arrest.”); Fisher v. City
of San Jose, 509 F.3d 952, 959-60 (9th Cir. 2007)(“the Payton
warrant requirement[] necessarily applies . . . to in-house
seizures that do not amount to a formal arrest. . . . [T]he
special status of in-house seizures recognized in Payton means
that ‘probable cause is a precondition for any warrantless entry
to seize a person in his home.’ LaLonde [v. Cty. of Riverside],
204 F.3d [947,] 954 [(9th Cir. 2000)]. . . . For similar
reasons, any in-house seizure must be subject to the warrant
requirement as well, absent an applicable exception. We agree in
this regard with the Sixth Circuit [in Saari] . . . . It
therefore does not matter for present purposes whether any
seizure of Fisher that occurred before he was taken into custody
at the conclusion of the standoff would have amounted to an
arrest or only to a Terry seizure had the seizure occurred
outside the home. Either way, a warrant was presumptively
required.”), rev’d in part on other grounds, en banc, 558 F. 3d
1069, 1074-75 (9th Cir. 2009)(parties agreed that plaintiff was
“for legal purposes, seized inside his home, and as such, the
burden is on the police to show either that they obtained a
warrant or that some exception to the warrant requirement
excused officers from getting one” although parties also agreed
that “there was probable cause to arrest” the plaintiff at the
time he was seized).
29
arrest the plaintiff must show he or she was arrested without
probable cause.”)(citing Dowling v. City of Phila, 855 F.2d 136,
141 (3d Cir. 1988)(“The proper inquiry in a Section 1983 claim
based on false arrest . . . is not whether the person arrested
in fact committed the offense but whether the arresting officers
had probable cause to believe the person arrested had committed
the offense”); Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 11819 (2d Cir. 1995)(“There can be no federal civil rights claim
for false arrest where the arresting officer had probable
cause”)(citing Bernard v. U.S., 25 F.3d 98, 102 (2d Cir.
1994))11. However, none of those cases were addressing the
situation here, where probable cause may have been present to
seize the person, but the alleged seizure occurred in the home
11
The Court notes that, although many cases, see, e.g., Weyant
v. Okst, 101 F. 3d 845, 852 (2d Cir. 1996) cite to Singer and
Bernard for the proposition that “probable cause” is a “complete
defense” to a false arrest claim under § 1983 as well as under
state tort claims for false arrest, Singer’s holding to that
effect cites Bernard, which actually considers whether the
plaintiff could claim “false arrest under New York law” and
holds that “the existence of [probable cause] is a complete
defense to an action for false arrest[,]” citing Zanghi v. Inc.
Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985).
Zanghi, in turn, states that it “is abundantly clear that a
finding of probable cause will defeat state tort claims for
false arrest, false imprisonment and malicious prosecution.” Id.
(emphasis added)(citing Feinberg v. Saks & Co., 443 N.Y.S.2d 26
(App. Div. 2d Dep’t 1981)(“probable cause” constitutes “complete
defense to a cause of action for false arrest or imprisonment”
as well as “malicious prosecution” in state tort case; no claims
under § 1983 pled or pursued)(citing Mullen v. Sibley, Lindsey &
Curr Co., 421 N.Y.S.2d 490, 493-94 (App. Div. 4th Dep’t
1979)(same))).
30
without a previous lawful entry into the home, whether by
exigent circumstances or consent. Such police conduct is, the
Court is persuaded, unconstitutional as violative of the Fourth
Amendment, under Payton and its progeny. Accordingly, it is
actionable in a § 1983 claim. See 42 U.S.C. § 1983 (“Every
person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects . . . any citizen
of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress[.]”).12
Because Plaintiffs, in their original response to the
Motions for Summary Judgment, pointed to evidence in the record
12
See, e.g., Morse v. Fitzgerald, No. 10-CV-6306 CJS, 2013 WL
1195036, at *7 (W.D.N.Y. Mar. 22, 2013)(rejecting defendant
officer’s claim that “the warrantless arrest [inside the
plaintiff’s home] was lawful, since he had probable cause”). But
see Schwartz v. Coulter, No. 91 C 7954, 1993 WL 398578, at *2-8
(N.D. Ill. Oct. 6, 1993)(granting summary judgment on § 1983 and
state tort “false arrest” claims where officers had probable
cause, but denying summary judgment on § 1983 warrantless entry
claim pursuant to Payton); Breitbard v. Mitchell, 390 F. Supp.
2d 237, 245-49 (E.D.N.Y. 2005)(granting summary judgment on
state and § 1983 “false arrest” claims where arrest was
supported by probable cause, but denying summary judgment on
“unreasonable seizure” claim, in alleged violation of the Fourth
Amendment, where it was “undisputed that plaintiff was arrested
without a warrant on misdemeanor and [non-criminal] violation
charges inside her own home” on Payton grounds where exigent
circumstances were lacking).
31
to support the existence of a genuine dispute of material fact
as to whether Plaintiff’s freedom of movement was restrained
(thus constituting a “seizure” by the Officer Defendants,
although the evidence undisputedly does not allow for a
reasonable finding that DVR was formally arrested within the
home--or, indeed, at any point) once the Officer Defendants
entered the home without a warrant, and because the Officer
Defendants cannot effectively claim the existence of exigent
circumstances rendering such seizure inside the home reasonable
as a matter of law, Plaintiff’s claim for unlawful seizure, in
violation of the Fourth Amendment and § 1983, shall also be
revived. See Hopkins, 573 F. 3d at 773 (“The Fourth Amendment
protects against warrantless arrest inside a person’s home in
the same fashion that it protects against warrantless searches
of the home, which is to say that police officers may not
execute a warrantless arrest in a home unless they have both
probable cause and exigent circumstances. . . . [B]ecause
Hopkins was in fact seized inside his home, [the o]fficers . . .
violated his Fourth Amendment rights by arresting him without a
warrant for the same reasons that their emergency and exigency
defenses fail to justify their warrantless entry.”).
Accordingly, summary judgment as to Plaintiff Paredes’s and
DVR’s claim for unconstitutional search (namely, the warrantless
entry) shall be VACATED, and the Officer Defendants’ motion for
32
such summary judgment shall be DENIED. Additionally, summary
judgment as to DVR’s claim for unconstitutional seizure (namely,
the alleged restraint on his liberty within the home) shall be
VACATED IN PART, and the Officer Defendants’ motion for such
summary judgment shall be DENIED to the extent DVR claims he was
detained by the officers in his home following a warrantless
entry, and GRANTED to the extent Plaintiff DVR claims he was
arrested and that the officers lacked probable cause to arrest
him. The former claims may proceed.13
The Court thus turns to the other contentions in
Plaintiffs’ motion for reconsideration.
B. “Exhaustion”
Plaintiffs argue that the Court erred in “rul[ing] that the
Plaintiff, DVR or his parents had a duty to exhaust an
administrative remedy by appealing DVR’s high school suspension
to the E.H.T. Board of Education.” [Docket Item 82-3 at 4.] This
contention lacks merit.
13
Plaintiffs’ concomitant state law claim for civil trespass
will not be revived at this time, as it appears beyond
peradventure that Plaintiffs cannot demonstrate damages in
excess of $3,600 or a permanent injury as a result of Defendants
Ware, Defazio, and Burns’s alleged trespass, see N.J.S.A. 59:92(d), and vacating the dismissal of that cause of action would
be futile. Cf. Antoine ex rel. Atoine v. Rucker, No. 033738(DRD), 2006 WL 1966649, at *16 (D.N.J. July 12, 2006); Rizzo
v. Bergen Cty. Bd. of Soc. Servs., No. L-2926-12, 2017 WL
382913, at *4 (Sup. Ct. N.J. App. Div. Jan. 27, 2017).
33
Plaintiffs argue that there is no duty to exhaust a state
administrative remedy before bringing suit in federal court
pursuant to § 1983. The Court agrees. See, e.g., Holland v.
Rosen, 277 F. Supp. 3d 707, 737 (D.N.J. 2017)(“The most salient
difference is that relief under § 2241 requires a plaintiff to
have exhausted state remedies before seeking federal relief,
while § 1983 has no such exhaustion requirement.”).
This does not affect the Court’s earlier conclusion,
however, that, when pressing a procedural due process claim
under the Fourteenth Amendment (and, accordingly, § 1983), “a
plaintiff must have taken advantage of the processes that are
available to him or her, unless those processes are unavailable
or patently inadequate.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d
Cir. 2000). Assuming arguendo that a plaintiff has satisfied the
first step of a procedural due process claim analysis by showing
that “the asserted individual interests are encompassed within
the fourteenth amendment’s protection of ‘life, liberty, or
property[,]’” the plaintiff must nevertheless proceed to the
second step wherein the court analyzes “whether the procedures
available provided the plaintiff with ‘due process of law.’” Id.
(citations omitted). This second step is not a question of
exhaustion; rather, it goes to the question of whether the
plaintiff was actually deprived of procedural due process: “A
due process violation ‘is not complete when the deprivation
34
occurs; it is not complete unless and until the State fails to
provide due process.’” Id. (citing Zinermon v. Burch, 494 U.S.
113, 126 (1990)). The Third Circuit continued:
If 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 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. Bd. of Regents,
790 F.2d 707, 711-12 (8th Cir. 1986).
This requirement is to be distinguished from
exhaustion requirements that exist in other contexts.
Alvin appears to conflate the two and contends, as an
alternative to his claim that he attempted to use the
available procedures, that he need not go through the
processes available because of the general rule that
there is no exhaustion requirement for 42 U.S.C.
§ 1983 claims. See Patsy v. Bd. of Regents of Florida,
457 U.S. 496, 516 (1982)14; Hohe v. Casey, 956 F.2d
399, 408 (3d Cir. 1992). However, exhaustion
simpliciter is analytically distinct from the
requirement that the harm alleged has occurred. Under
the jurisprudence, a procedural due process violation
cannot have occurred when the governmental actor
provides apparently adequate procedural remedies and
the plaintiff has not availed himself of those
remedies.
Alvin, 227 F.3d at 116 (emphasis added).
Nothing in Plaintiffs’ motion for reconsideration suggests
the Court overlooked any controlling case law or erred in its
application of the principles espoused in Alvin to the case at
hand. The Court manifestly did not hold that Plaintiffs failed
to satisfy a (non-existent) exhaustion requirement for claims
14
See Docket Item 82-3 at 5 (citing Patsy).
35
brought under § 1983; rather, the Court held that Plaintiffs’
procedural due process claim failed as a matter of law pursuant
to Alvin. [Docket Item 80 at 17-19.] Plaintiffs’ motion for
reconsideration on this ground is therefore denied.
C. Basis for Suspension
Plaintiffs’ motion for reconsideration next argues that the
Court erred in “believ[ing] that Plaintiff DVR’s high school
suspension was based on his disposing of the SIM card from the
cell-phone which he found.” [Docket Item 82-3 at 8.]
Plaintiffs argue that, although “the Court evidently
believed that Dr. Scelso suspended DVR for removing the SIM
card[,]” Dr. Scelso testified that the fact that DVR flushed the
SIM card down the toilet did not “factor at all in [her]
decision-making as to whether or not a theft had occurred” and,
“[t]herefore, Dr. Scelso’s suspension of DVR and her expulsion
of him from the wrestling team were based solely on the police
e-mails, both of which inferred a crime of theft by DVR, but
based on no evidence.” Id. at 9-10.
First, Plaintiffs do not identify where in the Court’s
previous Opinion such a “mistaken” “belief” was expressed. It
was not. The Court found, instead, 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,”
36
and granted summary judgment on Plaintiffs’ substantive due
process claims. [Docket Item 80 at 20.] The Court stated:
[T]his was a situation where a student, [DVR],
admitted to being in the possession of another
student’s valuable cell phone, taken without that
other student’s permission on school property.
Additionally, [DVR] 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 [DVR] 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.”
Relying on this information, Dr. Scelso acted within
her discretion and issued a four-day suspension[.]
Id. at 21. The Court discerns no error.
Second, it distorts the evidentiary record beyond
recognition to say that Dr. Scelso suspended DVR “based on no
evidence.” In fact, it distorts the meaning of the word
“evidence.” The undisputed evidence shows that Dr. Scelso
suspended DVR after the emails from the officers regarding the
incident15 and after talking to DVR [Docket Item 63-3 at 32.] All
15
Plaintiffs repeatedly press the claim that the emails were
somehow improper because the wrong police officer sent the email
to Dr. Scelso and because “the Memorandum of Agreement only
allows a written (e-mail-type) report if the off-campus incident
involved weapons, drugs, or imminent threats made to fellow
students or faculty.” [Docket Item 82-3 at 9.] While none of
these alleged procedural irregularities rise to the level of a
constitutional violation, the Court notes this argument as
further illustration that Plaintiffs do not understand the
import of circumstantial evidence, or that reasonable inferences
may be made when determining probable cause.
For instance, probable cause to believe that DVR stole the
phone on campus may have been reasonably inferred from the
37
undisputed facts that 1) Bower, Jr., reported that the phone
went missing from his gym locker on campus; 2) DVR was
subsequently located in possession of the phone without
permission or authority from Bower, Jr. or a reasonable lawful
explanation for his possession thereof (see Barnes v. U.S., 412
U.S. 837, 844 (1973)(“For centuries courts have instructed
juries that an inference of guilty knowledge may be drawn from
the fact of unexplained possession of stolen goods”)); and 3)
DVR flushed the SIM card down the toilet in an attempt to
conceal his possession of the phone, an act which is probative
(albeit not dispositive) of consciousness of guilt. Moreover, it
is undisputed that DVR initially did not tell Dr. Scelso that he
flushed the SIM card, only admitting that he did so when
confronted by Dr. Scelso--this omission could also reasonably
have led Dr. Scelso (or a reasonable state actor in her
possession) to have probable cause to believe that DVR stole the
cell phone on campus.
This is so entirely regardless of the fact that no
eyewitness has emerged to affirmatively state, “I saw DVR steal
the phone from the locker,” that DVR denies stealing the phone,
or any other allegedly exculpatory evidence (or alleged lack of
directly inculpatory evidence) that Plaintiffs seek to elevate
to the status of dispositive of DVR’s innocence. Nor did any of
the relevant actors turn a blind eye to evidence that would
exonerate (or tend to exonerate) DVR; instead, for example, Dr.
Scelso considered and reasonably credited (or declined to
credit) DVR’s denials and the lack of dispositive, airtight
evidence and ultimately concluded, from the totality of the
evidence before her, that DVR should be suspended for four days.
Cf. Tisdale v. City of Phila., 688 F. App’x 136, 137-38 (3d Cir.
2017)(police officer had probable cause to arrest plaintiff for
theft where eyewitness identified plaintiff to police officer,
although plaintiff argued that his clothing did not match what
the eyewitness reported and no evidence of the stolen items was
recovered from his person although the eyewitness followed the
perpetrator in her vehicle for some time while on the phone with
the 911 operator and later “converged” with the plaintiff and
the police officer, whereupon the eyewitness identified the
plaintiff as the thief; “[d]isagreement over the precise colors
of Appellant’s clothing does not negate the identification by
Lee in the face of Gibson’s testimony indicating that it was
reasonable to believe Lee was telling the truth”).
To be clear: this Court does not decide, nor assume, that
DVR actually stole the cell phone. Indeed, the Court accepted
his denials for the purposes of determining Defendants’ motions
for summary judgment. The Court likewise credited DVR’s
38
of those sources of information allowed her to reasonably
conclude that DVR stole the cellphone--his denials
notwithstanding, as she was not required to credit them--and it
cannot fairly be said that she made that determination “based on
no evidence.” [Docket Item 82-3 at 10.]
Plaintiffs seem to be under the misapprehension that
probable cause in a criminal case requires something akin to a
videotape of the crime and a full confession. See, e.g., Pl.
Mot. at 5-6 (DVR handed the phone to Officer Bower “explaining
that he did not steal the phone but found the phone in his bag.
. . . Ware . . . knew DVR had just handed Off. Bower the cellphone; E.H.T. Officer Ware also heard DVR say that he found the
phone. There was yet no witness, and never would be any witness,
to say that DVR stole the phone or even tried to access his
testimony that he flushed the SIM card simply because he did not
want police coming to his house, but that he intended to return
the cell phone the next day, for the purposes of those motions.
[Docket Item 63-3 at 62-63.] Similarly, the Court credited DVR’s
explanation that he lacked sufficient opportunity to steal the
phone during wrestling practice, id. at 65, and that he told
Scelso verbally that he flushed the SIM card but simply did not
include that in his written statement, id. at 66. However,
crediting those explanations does not equal concluding that the
relevant state actors acted on the basis of “no evidence” or
lacked probable cause to believe that he did steal the cell
phone. Accordingly, no constitutional violation is evident.
Again, the issue is not whether there exists uncontroverted
proof of guilt beyond a reasonable doubt; the issue instead is
whether any reasonable factfinder could conclude that the
circumstantial and direct evidence known to Dr. Scelso failed to
present probable cause for disciplinary action.
39
classmate’s gym locker. Thus, there was never any probable cause
to charge DVR ‘for committing the crime of theft’”)(emphasis in
original); id. at 10 (“Dr. Scelso admitted she knew of no
factual evidence, nor any person at E.H.T. High School who had
any evidence, that a cell-phone was actually stolen or that a
locker had been broken into at all.”). This is manifestly not
the case.
As has been repeatedly stated, “[p]robable 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).” [Docket Item 80 at 24.] Under New Jersey law,
probable cause existed, based on the undisputed facts in the
record, to believe that DVR had committed or was committing an
offense.16
16
See Docket Item 80 at 24 (citing N.J.S.A. § 2C:20-3 and the
“EHTHS Disciplinary Code”). See also N.J.S.A. § 2C:20-7,
“Receiving Stolen Property” (“A person is guilty of theft if he
knowingly receives or brings into this State movable property of
another knowing that it has been stolen, or believing that it is
probably stolen. It is an affirmative defense that the property
was received with purpose to restore it to the owner.
‘Receiving’ means acquiring possession, control or title, or
lending on the security of the property.”). See also People v.
Mitchell, 164 Cal. App. 4th 442, 462-63 (Ct. App. 3d Dist.
2008)(“It is often the case with theft-related offenses that the
People do not have direct evidence of the theft of the victims’
property. Although circumstantial evidence of a defendant’s
opportunity to steal the items and later possession of them
40
Circumstantial evidence is evidence. A determination of
probable cause--or even the much higher burden of guilt beyond a
reasonable doubt--may be satisfied by the consideration and
acceptance of circumstantial evidence. See, e.g., State v.
Dancyger, 29 N.J. 76, 84 (1959)(“The evidence presented by the
State was wholly circumstantial. However, if this evidence is of
sufficient quality to convince a jury beyond a reasonable doubt
of the defendant’s guilt, it does not matter that it is
circumstantial. It has often been said that circumstantial
evidence is not only sufficient but may also be more certain,
satisfying and persuasive than direct evidence.”)(internal
citations and quotation omitted); Gov’t of V.I. v. Joseph, 465
F. App’x 138, 141 (3d Cir. 2012)(third element of “possession of
stolen property,” “that the defendant knew or had cause to
believe that the property was obtained in an unlawful manner,
would suggest he was the thief, it is a safer bet to prosecute
for receiving stolen property. That appears to be the case here.
Circumstantial evidence of defendant’s opportunity to steal
property while working for Billy C. coupled with her later
possession of that property suggests she was the thief.
Nevertheless, it is conceivable someone else stole the property
and passed it on to defendant. Therefore, with uncontradicted
evidence of defendant’s possession of the property under
circumstances suggesting it had been stolen by someone, the
People may have considered prosecution for receiving stolen
property the more prudent course”).
The Court notes that the court in Mitchell described
“prosecuting for receiving stolen property” as the more prudent
course, not dropping the prosecution entirely for lack of
probable cause and the attendant fear of a § 1983 lawsuit.
41
was sufficiently proven by substantial circumstantial
evidence”)(citing U.S. v. McNeill, 887 F.2d 448, 450 (3d Cir.
1989)).17
17
See also U.S. v. Allegrucci, 258 F.2d 70, 77 (3d Cir.
1958)(“The unexplained appearance in defendant’s possession in
Scranton, Pennsylvania, of goods placed on platforms in New York
for shipment to such distant places as Fort Worth Texas,
Clarksburg, West Virginia, and Warrington, Florida, and his
sales of the goods for about half their retail price through a
grocery clerk and delivery boy were facts from which the jury
could have properly found that the goods had been stolen from
the platforms and that defendant knew they had been stolen”);
Thompson v. U.S., No. 12-1312, 2015 WL 1344793, at *4-5 (D.N.J.
Mar. 23, 2015)(law enforcement used GPS tracker to track money
stolen in bank robbery to “van driven by Petitioner,” petitioner
“led police on a high speed chase and fled on foot after
crashing the van[,]” the van “contained the stolen money, the
gun used in the robbery, and items worn by the robbers during
the robbery” and an expert testified “that DNA from the hat and
mask worn during the robbery belonged to Petitioner”; “This
evidence, albeit circumstantial is more than sufficient to
sustain Petitioner’s convictions. This Court notes that
Petitioner’s habeas petition proceeds from the faulty premise
that circumstantial evidence is inherently unreliable and that a
conviction can only be sustained by direct evidence. That
argument has been soundly rejected by both the Third Circuit and
the United States Supreme Court”)(citations omitted); U.S. v.
Rocco, 99 F. Supp. 746, 748 (W.D. Pa. 1951)(From defendant’s
“possession and the furtive manner of disposition of some of the
bonds . . . the jury was justified in inferring that the
defendant knew that the bonds were stolen and that, at least, he
had aided and abetted or caused them to be transported in
interstate commerce”); U.S. v. Andrews, 675 F.2d 962, 964 (8th
Cir. 1981)(“There was evidence that placed the defendant at the
site of the theft near the time it was stolen. Add to this his
possession of the stolen goods a day later, his failure to
adequately explain that possession and his actions after the
crime; and it is clear that the guilty verdict was supported by
sufficient evidence” although defendant testified under oath
that he did not know item was stolen; “government [also]
argue[d] that because of the unbelievable nature of the
defendant’s explanation, the out-of-court statements [defendant
made to law enforcement saying the same] were tantamount to a
42
Here, a determination by the relevant state actors that
probable cause existed, even if all reasonable inferences on the
undisputed evidence in the record are drawn in favor of
Plaintiffs, was reasonable. This is so notwithstanding that DVR
denied stealing the phone. DVR was at the wrestling practice
where the phone went missing. He admitted to transporting it
from the locker room in his bag, whether or not he knew it was
in his bag. The phone was found in his possession, without
permission or authority by the phone’s owner, and DVR admittedly
intentionally flushed the SIM card to prevent the police from
coming to his house over the cell phone, which a reasonable
observer may conclude is evidence of consciousness of guilt. See
Silverman v. Lazaroff, No. 2:07-cv-01233, 2009 WL 2591676, at
*26 (S.D. Ohio Aug. 19, 2009)(“appellant engaged in furtive
conduct reflective of a consciousness of guilt”). This is so,
even where DVR claims that he was not guilty, and only flushed
confession”); State v. Haverty, 475 P.2d 887, 889 (Wash. Ct.
App. 1970)(“In the instant case when the officers first saw the
defendant with the coat and tag [the condition of which
suggested that the coat had been removed from the store without
the defendant paying for it], the sight aroused suspicion
warranting further inquiry to determine if there was an innocent
explanation dispelling the suspicion aroused. When, however,
defendant gave an improbable explanation of how he came into
possession of the coat, probable cause to arrest arose.”);
People v. McFarland, 376 P.2d 449, 452 (Cal. 1962)(“Possession
of recently stolen property is so incriminating that to warrant
conviction there need only be, in addition to possession, slight
corroboration in the form of statements or conduct of the
defendant tending to show his guilt”)(citations omitted).
43
the SIM card because he was afraid of being thought guilty. DVR
did not volunteer a reasonable explanation for how he came to be
lawfully in possession of the cell phone. He still has not done
so; his only explanations on this point have rested on
supposition and speculation that an unknown third party slipped
the phone into DVR’s bag for reasons unknown.
Furthermore, no eyewitness to the precise moment of theft
is necessary to create probable cause to suspect someone of
theft. It is not the case that there was “no factual evidence”
that “a cell-phone was actually stolen”; Bower, Jr. stated that
his phone was in his locker, and the phone was then located in
the possession of DVR without Bower, Jr.’s permission or
authority. These circumstances constitute “factual evidence”
(albeit circumstantial “factual evidence”) to support the
proposition that a cell phone was actually stolen. Again,
neither a confession, nor videotape of the incident, nor
eyewitness reports of the moment of theft, are required. See
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 (3d Cir.
2000)(where witness told police officer that art teacher
admitted “that she had no permission to take the property she
was found loading into her car,” notwithstanding plaintiff’s
argument that this “does not establish probable cause in all
cases[,]” e.g., “a teacher might be taking home materials
belonging to the school to prepare class lessons[,]” probable
44
cause existed as a matter of law, even making all reasonable
inferences in plaintiff’s favor where witness also told police
officer that teacher “did intend to deprive the District of its
property” by giving it to community center”).18
While probable cause in § 1983 cases is normally a question
of fact left to the province of a jury, see Wilson v. Russo, 212
F.3d 781, 796 (3d Cir. 2000)(Pollak, J., concurring in part and
dissenting in part)(citations omitted), a district court may
“conclude in the appropriate case, however, that probable cause
did exist as a matter of law if the evidence, viewed most
favorable to Plaintiff, reasonably would not support a contrary
factual finding.” Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d
Cir. 1997).19
18
See also id. at 790 n.8 (“Merkle also contends that Hahn
lacked probable cause because he failed to interview other
witnesses . . . prior to making the arrest. However, Hahn had
every reason to believe a credible report from a school
principal who witnessed the alleged crime. This report alone
sufficiently established probable cause. Hahn was not required
to undertake an exhaustive investigation in order to validate
the probable cause that, in his mind, already
existed”)(citations omitted); Dintino v. Echols, 243 F. Supp. 2d
255, 264-66 (E.D.Pa. 2003)(same)(citations omitted).
19 Compare Patzig v. O’Neil, 577 F.2d 841, 849 (3d Cir.
1978)(“evidence of lack of probable cause was sufficient to
allow the issue to go to the jury” where “only direct evidence
of [decedent’s] condition at the time of her arrest” was
testimony that decedent “displayed no signs of intoxication when
her car was stopped, and . . . had had only two drinks that
night” “strongly supported a lack of probable cause” although
witness was decedent’s friend; “the weight of [her] testimony is
for a jury, not a court, to decide.”) with Groman v. Twp. of
Manalapan, 47 F.3d 628, 635 n.10 (3d Cir. 1995)(summary judgment
45
The Court discerns no error in its recitation or analysis
of the reasons for Dr. Scelso’s suspension of DVR, nor in its
conclusion that probable cause existed, as a matter of law.
Accordingly, Plaintiffs’ motion on this ground is denied.
D. Improper Ruling on DVR’s Credibility
Plaintiffs argue that the Court erred when it stated:
“There is no factual dispute that [DVR] admitted he took young
Bower’s cell phone from the locker room of the high school
wrestling team.” [Docket Item 82-3 at 10 (citing Docket Item 80
at 5).] Plaintiffs argue that DVR in fact disputed and continues
to dispute this fact. [Docket Item 82-3 at 10-11.]
The Court finds this argument unpersuasive. All that was
intended by the Court’s reference to DVR admitting he “took” the
phone from the locker room is that DVR admitted that he
physically conveyed the phone away from the locker room in his
gym bag, knowingly or unknowingly.20 The Court’s Opinion did not
appropriate for officers where “uncontested evidence
demonstrates that [fellow defendant officer] told each of them
that [plaintiff] had punched her. This is sufficient for them to
have believed probable cause existed”).
20 See Docket Item 82-3 at 11 (“DVR consistently stated that he
never realized someone’s cell-phone was in his gym bag until he
first saw it in the bag shortly before he exited the school bus
at his home. Even then he had no way of knowing who owned the
phone or how it came to be in his gym bag. And there is a very
plausible explanation of how the cell-phone came to be in DVR’s
gym bag: someone else found (or perhaps stole) the cell-phone
and placed it in DVR’s bag without his knowledge in order to
have DVR unwittingly transport the cell-phone out of the school
building.”)(emphasis added).
46
in any way rely on the premise that DVR admitted to knowingly
taking the cell phone. Accordingly, Plaintiffs’ motion for
reconsideration on this point is denied as well.
E. Monell Liability
Plaintiffs argue that the Court erred by granting summary
judgment on their claim of municipal liability pursuant to
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), because
Plaintiffs adduced sufficient evidence to allow a reasonable
finder of fact to conclude that “Egg Harbor Township (E.H.T.)
has . . . an established policy in the Uniform Memorandum of
Agreement between the E.H.T. school system and the E.H.T. Police
Dept. whereby the police regularly report to the E.H.T. schools
about suspected criminal activities which occur off the school
campus involving public school students.” [Docket Item 82-3 at
12 (emphasis in original).]
The Court agrees that the evidentiary record supports, at
least, a genuine dispute of material fact as to the existence of
an official municipal policy; where the Court parts ways with
Plaintiffs is that it does not agree, on the evidentiary record
before the Court at summary judgment, that a reasonable finder
of fact could conclude that “this official policy led to due
process [or other constitutional] violations which the
defendants are ignoring.” [Docket Item 82-3 at 14.]
47
Plaintiffs cite to two alleged violations of the Memorandum
of Agreement itself, id. at 15, neither of which amount to a
constitutional violation. See n.12, supra (allegations that
wrong officer wrote email and that only verbal, rather than
written, report were authorized under the Memorandum of
Agreement do not make out a constitutional violation).21
Plaintiffs also argue that “there was no probable cause to
believe DVR stole the phone, or to contradict his statement to
the police and the vice-principal that he found the phone in his
bag.” [Docket Item 82-3 at 15.] The Court disagrees for the
reasons stated above, and does not find that the Memorandum of
Agreement led to any constitutional violation on this ground.
Finally, Plaintiffs argue that “Vice-Principal Scelso did
no investigation at all. . . . Dr. Scelso simply took the emailed word of Officer Ware that DVR was guilty of the theft
without speaking to Officer Ware or to Officer Spano, the
official liason officer.” Id. As the Court pointed out in its
21
Furthermore, the Court disagrees that the second of these
alleged violations of the Memorandum of Agreement even violated
the Memorandum; Plaintiffs’ argument that only a verbal report
was permitted is premised upon the supposition that “off-campus”
incidents can only be reported in writing if they involve
“drugs, weapons, or threats of harm made to students or faculty”
ignores the reality that both the Officer Defendants (and/or the
liason officer, Officer Spano) and Dr. Scelso would have been
justified in concluding that DVR committed a theft offense on
campus on the basis of the circumstantial evidence described at
length above and in the Court’s previous Opinion.
48
earlier Opinion, although “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.” [Docket Item 80 at 22, 22 n.4, citing
N.J.A.C. 6A:16-7.2 and noting that that provision requires a
district board of education to hold an “informal hearing” with
the student to be suspended, its requirements “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.”). Moreover, the
evidentiary record is clear that Dr. Scelso made the decision to
suspend DVR after reading the emails and after speaking to DVR.
DVR’s own statements (and any omissions or elisions that may
have been in them) were reasonably part of what Dr. Scelso
relied upon in making the decision to suspend DVR. Without
deciding or implying that there was some baseline level of
“investigation” Dr. Scelso was required to undertake, Dr. Scelso
undoubtedly “investigated” the incident when she interviewed DVR
about it.
The Court again discerns no error here in concluding that
Plaintiffs have not adduced adequate evidence that the
Memorandum of Agreement was a municipal policy that led to a
constitutional violation, allowing for Monell liability.
49
Plaintiffs appear, possibly, to argue that DVR’s procedural
due process rights were violated by the alleged failure of Dr.
Scelso to provide “an explanation of the evidence forming the
basis of the charges,” pursuant to N.J.A.C. 6A:16-7.2 because
“Dr. Scelso never presented DVR with evidence against him. How
could she when there was no evidence?” [Docket Item 82-3 at 1516.] The Third Circuit has held that a person’s due process
rights are not violated when a school suspends him following
allegations of criminal activity from “credible sources.”
Jerrytone v. Musto, 167 F. App’x 295, 301 (3d Cir. 2006).
Moreover, the Third Circuit has also affirmed the adequacy (on
due process grounds) of an informal procedure that essentially
only involved interviewing the accused student and the accuser
in a sexual misconduct case and suspending the accused student
on (as assumed for summary judgment purposes) the sole say-so of
the accuser. Shuman ex rel. Shertzer v. Penn Manor Sch. Dist.,
422 F.3d 141, 149-50 (3d Cir. 2005)(citing Goss v. Lopez, 419
U.S. 565, 572-73, 577, 581-82 (1975) and S.G. v. Sayreville Bd.
of Educ., 333 F.3d 417, 424 (3d Cir. 2003)).
Keeping in mind that the undisputed evidence shows that Dr.
Scelso made the decision to suspend DVR after speaking with DVR
himself (and that this, in and of itself, contradicts
Plaintiffs’ position that “All Dr. Scelso could possibly have
said would be, ‘DVR, I am suspending you for theft because
50
Officer Ware says it was a theft.’ But due process requires
something more[,]” id. at 16), Plaintiffs’ procedural due
process claim cannot be sustained under Alvin v. Suzuki, as
described in Section IV.B., supra.
Accordingly, Plaintiffs’ motion for reconsideration on this
ground is denied.
V.
Conclusion
For the reasons explained above, Plaintiffs’ motion for
reconsideration [Docket Item 82] will be granted as to
Plaintiffs’ claims of unlawful entry (or unconstitutional
search) under the Fourth Amendment and § 1983 and as to
Plaintiff DVR’s claim of unconstitutional seizure within
Plaintiffs’ home under the Fourth Amendment and § 1983. The
claim of unconstitutional seizure in the home will be viable
only if the defendants are liable for unlawful entry into the
home, for otherwise there was ample probable cause to seize or
arrest DVR outside the home. The Court notes that, at any trial
on these two claims, the jury may be instructed both that
probable cause to arrest DVR existed and that DVR was not
formally arrested by the Defendant Officers at any time. See
Fed. R. Civ. P. 56(g).
The Court’s previous grant of summary judgment to Defendant
Officers Ware, Defazio, and Burns upon these claims will be
51
vacated in part, and summary judgment as to these claims against
Ware, Defazio, and Burns will be denied to the extent Plaintiffs
claim the Officer Defendants conducted a warrantless entry into
their home, and to the extent Plaintiff DVR claims he was
subjected to an unlawful detention in his home subsequent to the
warrantless entry. In all other respects, Plaintiffs’ motion for
reconsideration will be denied. The Board Defendants’ motion for
sanctions [Docket Item 84] will likewise be denied, as will
Plaintiffs’ cross-motion for sanctions [Docket Item 86].
An accompanying Order will be entered.
August 16, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
52
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