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Burke v. Cicero Police Dep't

March 31, 2010


The opinion of the court was delivered by: Scullin, Senior Judge



On June 12, 2007, Plaintiff filed this action under 42 U.S.C. § 1983 alleging violations of her civil rights resulting from incidents that occurred on September 8 and September 10, 2004.

The amended complaint contains eight causes of action that allege, among other things, false arrest, malicious prosecution, excessive force, illegal search and seizure, and abuse of process. On September 20, 2008, the Court granted Defendant Cicero Police Department's motion to dismiss and granted Defendant Gillette Road Middle School's and Defendant Gangloff's motions for summary judgment. Accordingly, the only remaining Defendants are Deputy Kruger, Deputy Bollinger, and Deputy Wafer ("Defendants").*fn1

Currently before the Court is Defendants' unopposed motion for summary judgment.*fn2


Plaintiff was her niece's guardian when her niece attended Gillette Road Middle School during the 2004-2005 academic school year. On September 8, 2004, at approximately 2:20 p.m., Plaintiff arrived at the school and requested that school officials release her niece from school at that time because she needed to drop her niece off at a babysitter's in order to report to work on time.

Plaintiff requested that someone contact her niece using the school's public address system. Plaintiff then asked Defendant Kruger to allow her to proceed down the hall and through a door at the end of the hall to the back of the school, where her niece was located. Defendant Kruger told Plaintiff that it was against school policy to allow parents to roam the halls while classes were in session. Nonetheless, Plaintiff attempted to proceed down the hall, and Defendant Kruger blocked her path. Shortly thereafter, a staff member located Plaintiff's niece; and Plaintiff and her niece left the premises. Prior to leaving, Plaintiff indicated that she would pick up her niece at 2:30 p.m. every day for the remainder of the year, despite the fact that classes did not end until 2:40 p.m.

At some point prior to September 10, 2004, Defendant Gangloff, Principal of Defendant Gillette Road Middle School, telephoned Plaintiff and attempted to schedule a meeting with her to discuss her request to pick up her niece early every day. Plaintiff indicated that she could not meet with Defendant Gangloff that week.

On September 10, 2004, at approximately 12:10 p.m., Defendants Kruger, Bollinger and Wafer went to Plaintiff's residence to issue Plaintiff an appearance ticket for Obstruction of Governmental Administration in the Second Degree and Harassment in the Second Degree. When Defendants asked Plaintiff to come outside to discuss the incidents of September 8, 2004, Plaintiff refused. Defendants then told Plaintiff that she was under arrest and that she needed to step outside so that they could issue her an appearance ticket. When Plaintiff refused, Defendants attempted to gain entry into Plaintiff's residence. After these attempts proved unsuccessful, "Defendants used force to gain entrance to the residence," which entailed Defendant Wafer kicking in the dead-bolted front door.

Upon entry, Defendants informed Plaintiff that she was under arrest and ordered her to drop the telephone that was in her hand. Plaintiff struggled when Defendant Wafer attempted to place her in handcuffs and, thereafter, complained that the handcuffs were secured too tightly. Plaintiff was taken outside, and Defendant Wafer did a "pat down" search prior to placing Plaintiff in the patrol car.

Once in the patrol car, Defendants gathered information from Plaintiff and made arrangements for her niece. Defendant Wafer read Plaintiff her Miranda warnings at approximately 12:50 p.m., and Plaintiff refused to provide any statements. Plaintiff was arraigned at 3:00 p.m. at the Town of Cicero Court and was charged with Obstructing Governmental Administration in the Second Degree, Harassment in the Second Degree, and Resisting Arrest.

On or about November 15, 2006, Plaintiff accepted an adjournment in contemplation of dismissal of the criminal charges, and the charges were dismissed on May 14, 2007.


A. Standard of Review

1. Summary Judgment Standard

A court may grant a motion for summary judgment only if the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quoting Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d at 58) (other citation omitted). Furthermore, in assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See id. at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed. 2d 202 (1986)) (other citations omitted).

Federal Rule of Civil Procedure 56 provides that, if a non-moving party fails to oppose a summary judgment motion, then "summary judgment, if appropriate, shall be entered against the adverse party." Fed. R. Civ. P. 56(e)(2) (emphasis added). The Second Circuit has made clear, however, that where the non-moving party "chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial[,]" Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001), and that he is entitled to judgment as a matter of law, Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (quoting Fed. R. Civ. P. 56(c)).

Moreover, in determining whether the moving party has met its burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. Rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

2. Relief Under 42 U.S.C. § 1983

Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991)(citing Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed. 2d 481, reh. denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, she must establish a causal connection between the acts or omissions of each defendant and any injury or damages she suffered as a result of those acts or omissions. See id. (citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed. 2d 619 (1979)) (other citation omitted).

B. First Cause of Action

Plaintiff's first cause of action alleges conduct relating solely to Defendant Gangloff. Since the Court dismissed Defendant Gangloff from this action on September 20, 2008, and the allegations do not allege any misconduct on Defendants' part, the Court grants Defendants' motion for summary judgment as to the first cause of action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citation omitted).

C. Second Cause of Action

The second cause of action states that Deputy Kruger failed to identify herself as a Police Officer on September 8, 2004. When I left the school on September 8, 2004, I left under the assumption that she was a security guard which is why I couldn't understand why she would not escort [me] approximately thirty to fifty (30-50) feet to the door leading to the back playground. Her unreasonable demand that I walk around the building to get my niece were [sic] a contributing factor to me arriving to work late which eventually lead [sic] to my dismissal from my job.

See Amended Complaint at 5.

This cause of action fails to allege any conduct or omission on the part of Defendants Bollinger and Wafer. Accordingly, the Court grants Defendant Bollinger's and Defendant Wafer's motion for summary judgment with respect to this cause of action.

Regarding Defendant Kruger, even when reading this allegation in the light most favorable to Plaintiff, she has not alleged any cognizable constitutional deprivation. It is well-established that school authorities have the right to limit access to school property, and the courts afford great deference to their decisions to do so. See Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 724 (2d Cir. 1994) (holding that "[t]he Superintendent's order forbidding Silano from entering the school grounds also fails to implicate a protected liberty or property interest"); see also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969) (holding that states and school officials have "comprehensive authority," "consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools" (citations omitted)).

Defendant Kruger established that she was merely implementing this reasonable school policy that, in no way, impacted any of Plaintiff's cognizable constitutional rights. Accordingly, the Court grants Defendant Kruger's ...

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