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Janice E. Burke v. Cicero Police Department; Deputy K. Kruger

March 30, 2011

JANICE E. BURKE, PLAINTIFF,
v.
CICERO POLICE DEPARTMENT; DEPUTY K. KRUGER, DEPUTY FOR CICERO POLICE DEPARTMENT; DEPUTY BOLLINGER, DEPUTY FOR CICERO POLICE DEPARTMENT; DEPUTY WAFER, DEPUTY FOR CICERO POLICE DEPARTMENT; GILLETTE ROAD MIDDLE SCHOOL; AND AUDREY GANGLOFF, PRINCIPAL OF GILLETTE ROAD MIDDLE SCHOOL, DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

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. In her amended complaint, Plaintiff asserts eight causes of action, in which she alleges, among other things, false arrest, malicious prosecution, excessive force, illegal search and seizure, and abuse of process. On September 30, 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. See Dkt. No. 34. On March 31, 2010, the Court granted in part and denied in part Defendants Kruger, Bollinger, and Wafer's motion for summary judgment. See Dkt. No. 50. Specifically, the Court dismissed all pending claims except for Plaintiff's unlawful seizure/false arrest and imprisonment, unlawful search, and excessive force claims against Defendants Kruger, Bollinger, and Wafer ("Defendants").*fn1 See id. at 26 n.10.

The Court held a bench trial on September 13 and 14, 2010. At the trial, the Court heard testimony from Plaintiff, Plaintiff's sister Doretha Burke, Plaintiff's brother Joseph Burke, Jr., Defendant Kruger, Defendant Bollinger, Defendant Wafer, Defendant Gangloff, Nancy Noice-Baron, Richard Suphan, and Andrew Keegan. At the conclusion of the trial, Defendants made a motion pursuant to Rule 52(c) of the Federal Rules of Civil Procedure, arguing that Plaintiff had failed to establish liability. The Court reserved decision on that motion and directed the parties to file proposed findings of fact and conclusions of law.

Having reviewed the parties' submissions as well as the trial transcript, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

II. FINDINGS OF FACT

1. Plaintiff was her niece's guardian when her niece attended Gillette Road Middle School during the 2004-2005 academic school year.

2. 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 off at home prior to reporting to work at 3:00 p.m.

3. Plaintiff's niece was not in her classroom when Plaintiff arrived to pick her up; and, therefore, Plaintiff requested that someone contact her niece using the school's public address system.

4. When the school official refused to call Plaintiff's niece over the public address system, Plaintiff then asked Defendant Kruger, the Onondaga County Sheriff's Department's liaison officer to the school, 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.

5. 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.

6. At some point after Plaintiff left the school with her niece on February 8, 2004, and 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.

7. On September 10, 2004, at approximately 12:10 p.m., Defendants Kruger, Bollinger and Wafer went to Plaintiff's residence to issue her an appearance ticket for Obstruction of Governmental Administration in the Second Degree and Harassment in the Second Degree.

8. When Defendants asked Plaintiff to come outside to discuss the incidents of September 8, 2004, she 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.

9. When Plaintiff refused, Defendants attempted to gain entry into her residence. After these attempts proved unsuccessful, Defendant Wafer kicked in Plaintiff's dead-bolted front door. As Defendant Wafer attempted to gain entry, Defendant Bollinger moved to the back of Plaintiff's residence to make sure that Plaintiff could not escape through the back door.

10. Upon entry, Defendants informed Plaintiff that she was under arrest and ordered her to drop the telephone that was in her hand.

11. Plaintiff struggled when Defendant Wafer attempted to place her in handcuffs and, thereafter, complained that the handcuffs were secured too tightly.

12. Plaintiff was taken outside, and Defendant Wafer did a "pat down" search prior to placing Plaintiff in the patrol car.

13. Once in the patrol car, Defendants gathered information from Plaintiff and made arrangements for her niece.

14. Defendant Wafer read Plaintiff her Miranda warnings at approximately 12:50 p.m., and Plaintiff refused to provide any statements.

15. 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.

16. On or about November 15, 2006, Plaintiff accepted an adjournment in contemplation of dismissal of the criminal charges, and the ...


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