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September 12, 1984

MARY KEYES and JAMES NORRIS, Plaintiffs, against THE CITY OF ALBANY, THOMAS BURKE, as Police Chief, JOHN TANCHAK, THOMAS NOLAN, and VALERIE VON DOLLEN, as Members of the Albany Police Department, AND JOHN DOE and Other Unknown Members of the Albany Police Department, Defendants.

The opinion of the court was delivered by: MINER




 Inartfully pleaded in the seven "causes of action" set forth in the instant complaint are plaintiffs' claims for due process, equal protection and fourth amendment deprivations arising from the entry of City of Albany police officers upon the premises of plaintiff James Norris and the assault, arrest and detention of plaintiff Mary Keyes. Defendants John Tanchak, Thomas Nolan and Valerie Von Dollen are the officers charged with direct participation in these alleged civil rights violations. Defendants City of Albany and Thomas Burke, Police Chief of the City of Albany, are accused of failure to adequately train and supervise the officers whose conduct is complained of here. The action was brought pursuant to 42 U.S.C. § 1983, *fn1" and jurisdiction is predicated upon the provisions of 28 U.S.C. §§ 1331 and 1343. The action was tried to the Court on April 18 and 19, 1984, *fn2" and the final post-trial submission was received in Chambers on May 21, 1984. The following findings of fact and conclusions of law, mandated by Fed. R. Civ. P. 52(a), represent the Court's resolution of numerous conflicts in the testimony of the several witnesses, based upon an observation of the witnesses' demeanor and an assessment of their credibility.


 At about 2:00 A.M. on the morning of July 15, 1980, defendant Valerie Von Dollen was engaged in the performance of her duties as a patrol officer of the City of Albany Police Department. She was accompanied by Officer David Armento, with whom she was riding in a police vehicle designated as "Unit 2." Somewhere in the vicinity of Garden Street in the City of Albany, the officers were signaled to a stop by an unknown operator of an automobile, who told the officers that he was being followed so closely by another automobile that he was fearful for his safety. The officers overtook and stopped the vehicle subject of the complaint in short order. Leaving the police unit, Von Dollen approached the vehicle, an Oldsmobile sedan, on the driver's side, and Armento approached on the passenger's side. Only a driver was seated inside, and although he was not identified by name, he was described by Von Dollen as a small black male who was "'very nervous" and "fidgety." He twice was asked for his license and registration, failed to respond, and suddenly drove away from the scene in such a frenzied manner as to occasion a serious risk of harm to Officer Von Dollen. Although the officers gave chase at once, they were unable to locate the Oldsmobile sedan or its driver in the immediate vicinity.

 The foregoing events were reported by Officer Von Dollen via radio to Sergeant Thomas Nolan, the vehicle patrol supervisor for Division 2, the police division to which Von Dollen and Armento were assigned. Since the officers had recorded a motor vehicle registration number, they were able to determine that the automobile they sought was registered to Mrs. Terry Keyes, a resident of 97 Third Street in the City of Albany. Pursuant to the direction of Sergeant Nolan, Police Investigator John Tanchak proceeded to 97 Third Street in his police vehicle and located the automobile in question on the street in front of that address. Tanchak touched the hood of the automobile and found it to be "hot," indicating that the motor had been running recently. He reported his findings to Sergeant Nolan, who directed Von Dollen, Armento and Tanchak to converge at 97 Third Street with him at about 3:45 A.M. Also directed to that address were Officers Michael A. nardolillo and Frank St. Louis of the Arbor Hill Neighborhood Police Squad, who were dressed in special uniforms consisting of green blazer jackets and brown pants.The other officers were attired in traditional blue police uniforms, except for Investigator Tanchak, who was garbed in civilian clothing.

 After the officers identified the Oldsmobile sedan parked in front of 97 Third Street, Sergeant Nolan and Investigator Tanchak walked up the steps to the house, knocked on the door and began a conversation with Mrs. Terry Keyes after she answered the door. During that conversation, Officer Von Dollen observed the man the officers were searching for leave the house by the rear door and climb over the fence and into the yard of the adjoining premises at 99 Third Street owned by plaintiff James Norris. The man later was identified as Mitchell Keyes, husband of Terry Keyes and son of plaintiff Mary Keyes, who resided with Mr. Norris in the house at 99 Third Street. The officers proceeded down the sidewalk, pushed open a gate leading to the front yard of the Norris property and confronted Mr. Keyes, who was at all times visible to the officers. Sergeant Nolan, who was acquainted with Mr. Keyes, identified himself and asked Mr. Keyes if he could speak to him. Mr. Keyes thereupon struck Sergeant Nolan in the chest, pushed him away and ran in the direction of the Norris residence. At about this time, Officers Nardolillo and St. Louis received a radio call for assistance from Officer Von Dollen. These officers had driven their patrol car on Livingston Avenue to the rear of the Mitchell Keyes residence. Officer Nardolillo was stationed in the vehicle and Officer St. Louis was advancing toward the residence at the time of the call. They immediately proceeded to Third Street in the patrol car with siren and lights on and entered the Norris yard through the gate.

 A great turmoil then ensued in the Norris yard. The area was lighted to some degree by a street lamp and by flashlights carried by some of the officers. Mitchell Keyes resisted repeated efforts by the officers to take him into custody, and kicks, blows and yells were exchanged with frequency. At some point, Mr. Keyes called out to James Norris for help. Eventually, Mr. Norris was awakened by his children and came out onto the porch of his house and asked the officers to leave his property. At their request, he placed in a cage three dogs (two belonging to him and one belonging to Mitchell Keyes) that were running and barking in the yard. The officers then instructed him to return to the house, but he remained in the doorway on the porch. The three Norris children, Illamay, Sherrie and Robert, ran into the yard and were able to observe many of the events transpiring there, although the police officers encouraged them to leave the area.

 Plaintiff Mary Keyes, awakened by the barking of dogs, also entered the yard from the house where she resided with Mr. Norris. She observed her son, Mitchell, surrounded by police and getting the worst of it in the fray. The altercation continued in various sections of the Norris grounds and ended when Sergeant Nolan and Investigator Tanchak were aboe to subdue Mitchell Keyes by handcuffing him after placing him against the hood of a red automobile parked behind a truck in the yard. *fn3" At that point, while the officers were in the process of bringing Keyes under control, Mary Keyes stood behind the officers and asked what they were doing to her son. *fn4" In response, she was struck on the left side of her forehead by a five cell, foot long metal flashlight aproximately two inches in diameter, wielded by Officer Von Dollen. The blow was of sufficient force and severity to cause immediate and extensive bleeding, swelling and dizziness.Mrs. Keyes was assisted in returning to the house by Illamay Norris, who attempted to stop the bleeding. Shortly thereafter, she was driven to Memorial Hospital in Albany by Albert Norris, eldest child of plaintiff James Norris. Her treatment at the hospital emergency room included a tetanus shot.

 Apparently, Mrs. Keyes told hospital personnel of the circumstances of her injury and complained of her treatment at the hands of the police officers. A telephone call then was made by hospital authorities to police headquarters, resulting in the appearance of Investigator Tanchak at the emergency room. Upon his arrival, at about 5:15 A.M., he arrested Mrs. Keyes without a warrant on a charge of assault in the second degree, in violation of N.Y. Penal Law § 120.05(3). *fn5" After being taken into custody, Mrs. Keyes was transported immediately to Division 2 for processing. She was arraigned on the same day in Albany Police Court on the assault charge and was incarcerated for several hours before posting bond at approximately 3:00 P.M. on July 15, 1980. Ultimately, she pleaded guilty, with the assistance of counsel, to a reduced charge of disorderly conduct in violation of N.Y. Penal Law § 240.20. Mrs. Keyes received further treatment for her injuries on July 16th, 25th and 29th and on August 5th, 1980, and her total medical expenses were approximately $145.00. The only residual effect of her injury is a small and almost imperceptible permanent scar on the left side of her forehead.


 The threshold inquiry in a § 1983 case is twofold. The Court must consider whether the conduct complained of was committed by a person acting under color of state law as well as whether that conduct deprived a person of rights, privileges or immunities guaranteed by the constitution. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).There is no question that the individual defendants, in their capacities as officers of the City of Albany Police Department, acted "under color of state law." Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). The issue before the Court, then, is whether or not any action of the defendants served to deprive plaintiffs of any of their constitutional rights.

 In a § 1983 action the burden is on the plaintiff to prove by a preponderance of the evidence that conduct of the defendant "caused him to be subjected to a deprivation of constitutional rights." Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir. 1977); see also Rizzo v. Goode, 423 U.S. 362, 370-71, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976). The complaint in this action invokes the provisions of the fourth, fifth and fourteenth amendments.Specifically, however, the conduct for which the plaintiffs seek compensatory and punitive damages relates to the entry of the officers on the Norris property, the ...

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