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Strassner v. O'Flynn

March 27, 2006

JAMES STRASSNER, PLAINTIFF,
v.
PATRICK O'FLYNN, MONROE COUNTY SHERIFF; COUNTY OF MONROE; DEPUTY ROBERT DAY, MONROE COUNTY DEPUTY SHERIFF; DEPUTY PATRICK PONTICELLO, MONROE COUNTY DEPUTY SHERIFF; DEPUTY MARK WEIST, MONROE COUNTY DEPUTY SHERIFF, DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action pursuant to 42 U.S.C. § 1983 and New York State law, in which plaintiff claims that the individual defendant deputy sheriffs, acting pursuant to policies of the Sheriff and of Monroe County, violated his constitutional rights, and also committed various state-law torts. Now before the Court is defendants' motion [#24] for partial summary judgment, pursuant to Fed. R. Civ. P. 56, and plaintiff's cross-motion [#28] for the same relief. For the reasons that follow, plaintiff's motion is denied and defendants' motion is granted in part and denied in part.

BACKGROUND

Unless otherwise noted, the following are the undisputed facts of this case. Plaintiff was arrested by defendants Robert Day ("Day"), Patrick Ponticello ("Ponticello"), and Mark Weist ("Weist"), all of whom were Monroe County Sheriff's Deputies, in the early morning hours of January 18, 2003, as a result of telephone calls that he had made to his estranged wife the previous day. In that regard, Monroe County Family Court had issued two separate Orders of Protection against plaintiff on behalf of his wife. The first Order of Protection was issued by the Honorable John B. Nesbitt, Family Court Judge, on July 12, 2002, and stated, in relevant part:

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY SUBJECT YOU TO MANDATORY ARREST AND CRIMINAL PROSECUTION . . . .

A petition under Article 8 of the Family Court Act, sworn to on April 15, 2002, having been filed in this court in the above-entitled proceeding, and JAMES STRASSNER having appeared with counsel, Now, therefore, on consent it is hereby ordered that JAMES STRASSNER observe the following conditions of behavior: Stay away from CHRISTINE STRASSNER . . . .

***

Refrain from communication by mail or by telephone, e-mail, voice-mail or other electronic means with PETITIONER Refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against CHRISTINE STRASSNER RESP[ONDENT] MAY COMMUNICATE WITH PET[ITITIONER] ONLY FOR WELL BEING OF CHILDREN THROUGH PARTIES' MOTHERS OR RESP[ONDENT'S] SISTER . . . .

[T]his order of protection shall remain in effect up to an including July 12, 2003. (Davis Decl. Ex. A) The Honorable Ann Marie Taddeo, Family Court Judge, issued a second Order of Protection on August 22, 2002, which stated in relevant part:

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY SUBJECT YOU TO MANDATORY ARREST AND CRIMINAL PROSECUTION . . . .

[O]n consent it is hereby ordered that James Strassner . . . observe the following conditions of behavior: Stay away from the home of Christine Strassner . . . .

Refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against Christine Strassner. . . .

[T]his order of protection shall remain in effect until August 22, 2003. (Davis Decl. Ex. B) The second order was less restrictive than the first, and did not specifically prohibit plaintiff from contacting Mrs. Strassner by telephone. At the time Judge Taddeo issued the second order, she stated orally that it would modify the original order. However, the actual Order of Protection that Judge Taddeo issued was not designated as a modified order, nor did it say anything concerning the first Order of Protection.

On January 17, 2003, plaintiff and his estranged wife appeared in court concerning an issue related to the custody of their two children. Later that day, plaintiff's girlfriend call Mrs. Strassner's apartment and left a message on her answering machine. Mrs. Strassner returned the telephone call, and ended up speaking to plaintiff. According to plaintiff, he told Mrs. Strassner that he "did not want any trouble" with her, but she replied, "No, you screwed up by getting custody of my children, and ... you're going to pay for it."

A short time later, plaintiff, who admittedly had been drinking wine, called Mrs. Strassner and left a message on her answering machine. According to plaintiff, in the message he asked Mrs. Strassner not to "start any trouble" with the "courts" or the "cops". Subsequently Mrs. Strassner called 911 to complain, and defendant Day was dispatched to her home. At Mrs. Strassner's home, Day listened to the message that plaintiff had left on the answering machine. According to Day, on the recording plaintiff was yelling and sounded angry, but did not make any threats. Mrs. Strassner showed Day the Order of Protection issued by Judge Nesbitt on July 12, 2002. While Day was still at Mrs. Strassner's residence, plaintiff called again, and spoke directly to Day, who referred to the Order of Protection that Mrs. Strassner had shown him. According to plaintiff, he attempted to explain that there was a subsequent "modified" Order of Protection, but Day hung up on him. Plaintiff called Mrs. Strassner's residence again a few minutes later, and asked Day whether he was going to arrest plaintiff. When Day did not provide a definitive answer, plaintiff asked to speak to someone who could tell him whether or not he would be arrested. Plaintiff later called the 911 operator twice, asking whether he was going to be arrested.

After speaking with plaintiff, Day called the Monroe County Sheriff's records office and was told that there were two valid orders of protection against plaintiff. Without seeing the second Order of Protection, Day decided to arrest plaintiff for violating the Order of Protection which Mrs. Strassner had shown him, and he asked defendants Ponticello and Weist for their assistance in making the arrest. Day, Ponticello, and Weist had all received police training, including Basic Police Academy and on-the-job field training, and had received certification from the New York State Bureau of Municipal Police.

Day, Ponticello, and Weist proceeded to plaintiff's home, whereupon they were let in to the house by plaintiff's sister. Inside the house, plaintiff was standing near a table, on which he had placed his legal paperwork concerning the orders of protection, with his hands in his pockets. Day told plaintiff to remove his hands from his pockets. According to plaintiff, he did so and then sat down at the table. The parties offer conflicting versions of what followed.

Plaintiff alleges that, without warning, Day "slammed [his] face on the table and threw him across the table." Plaintiff states that after he was handcuffed, defendants sprayed pepper spray into his face and kicked him repeatedly while he was lying on the floor. Defendants, on the other hand, maintain that plaintiff was belligerent and appeared highly intoxicated, and that he pulled away and began fighting them when they attempted to handcuff him. Nonetheless, they contend that they used only necessary force to effect ...


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