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Zielinski v. City of Easton

September 24, 2009


The opinion of the court was delivered by: Stengel, J.



Plaintiff John Zielinski, a former Easton police officer, has sued his former employer and fellow officers for using excessive force in restraining him. He has failed to state any claims against the defendants. Therefore, the defendants' motion to dismiss will be granted.


Defendants removed this §1983 "excessive force" case from Northampton County court.*fn1 Zielinski, an Easton police officer, alleges that on May 6, 2007, while he was off-duty defendant Officer Thomas Migliore used "an illegal neck restraint which is considered deadly force" on him. He states defendant Sgt. Stephen Homoki ordered Officer Migliore to use the "illegal neck restraint." He was then surrounded by four armed officers.

According to Zielinski's complaint, the following events led to the illegal neck restraint. Zielinski "does not deny that he had been drinking alcohol" on May 6, 2007. He states he was walking home at 1:00 A.M. (he does not specify from where) when fellow Officers Ryan Celia and Kevin Krische encountered him. He told the officers he was "going to a bar to meet his girlfriend" and accepted a ride from the officers. The officers drove him to the bar. At 2:00 AM, Zielinski left the bar. On his way home, he fell into a "depression," scratched his head, and his clothes became dirty "from falling into mulch." He ended up at a Wawa, where he again saw Officers Celia and Krische. He told them that he was "okay" and continued walking home. Seven blocks later, however, he was surrounded by four officers, with three patrol cars and an unknown number of K-9s. A K-9 barked and "startled" the plaintiff.

At some point, Homoki gave orders for Zielinski to be grabbed and dragged by the officers. Zielinski, however, "knowing the appropriate police tact and procedure, believing he was under attack, tried to free himself from their grasp, and began to shout." Zielinski alleges he was forced to the ground, placed on his left side, handcuffed behind his back, and immobilized. He states Officer Migliore then said "lights out" and used the illegal neck restraint which "cut off his blood supply," "rendered him unconscious," and "humiliated"him.*fn2 There is no mention of the use of the illegal neck restraint in the police report of the incident.

Homoki took the plaintiff to the station, did a non-criminal, internal investigation, and would not permit Zielinski to leave until Captain Vangelo arrived. Captain Vangelo arrived, placed Zielinksi on administrative leave, and permitted him to leave.*fn3

Zielinski's complaint mentions Zielinski had filed a grievance against defendant Homoki in January 2007, protesting Homoki's promotion. That grievance was "unresolved" on May 6, 2007.

Following the events that form the basis of Zielinski's complaint and the city's subsequent termination of his employment, a collective bargaining arbitration occurred, and an opinion was written. See Exhibit A, at 2-3, 11 to Defendants' Motion to Dismiss. This opinion provides additional details about the May 5, 2007 and May 6, 2007 events. First, Zielinski made several phone calls from his cell phone to Northampton County 911. The arbitrator stated,

While on Smith Avenue, Officer Zielinski tried to call his girlfriend on his cell phone. Repeatedly, his phone reached Northampton County 911. He told the dispatcher that his cell phone was broken and was defaulting to 911. A short time later, he reiterated this to Officer Celia. He did give his first and last name to the dispatcher on the first call. However, the dispatcher instructed him to lock his keyboard, which Officer Zielinski did not do. Instead, he continued to use his phone causing him again to call the 911 center. In the last call, he refused to give his last name to the dispatcher. On the 911 center audiotape, he was audibly confused and intoxicated. Id. at 2.

Second, although Zielinski was "scheduled to begin his normal shift at 7:00 a.m. on May 6, 2007," on the evening of May 5, 2007 he had "had dinner with his girlfriend and then went to a bar for several hours where he consumed a significant amount of alcohol . . . then had an upsetting argument with his girlfriend at her residence . . . [and] decided to return to a bar to drink more alcohol." See Ex. A at 2. "A little after 1:00 a.m. . . . [he] stopped in front of the police station in downtown Easton. He used the public police telephone to reach a dispatcher for the purpose of calling in 'sick' for his shift, which was to commence in about six hours." Id. at 2-3.

Third, the Wawa at which Zielinski was observed by his fellow officers was on College Hill. The arbitrator stated that on a weekend night, Zielinski "could hardly have chosen a more inappropriate location. It is frequented by young people, including Lafayette students. He had the classic signs of intoxication, as well as dried blood on his forehead and mulch on his clothing." Id. at 12.

Fourth, the arbitrator's decision explains that when his fellow officers saw Zielinski at the Wawa, they phoned their supervisor, Sgt. Homoki. Homoki heard about Zielinski planned walk home, but knew "Zielinski lived in Plainfield Township, about seven miles from the Wawa, and that the roads into Plainfield Township were rural and without sidewalks." Id. at 3 (emphasis deleted). The decision also reveals Zielinski tried to open the passenger door of Homoki's K-9 vehicle, exposing himself to danger from the police dog. Id. at 4. In addition, Homoki "offered Officer Zielinski the option of a ride home or a ride to his girlfriend's home." Id. After this offer, Zielinski began to shout obscenities, swing his arms, and take an aggressive stance with his fellow officers. Id. at 12. Local residents were awakened and heard the "F" word screamed 20-40 ...

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