Lausin v. Bishko

• Citation: 727 F.Supp.2d 610
• Decision Date: 15 July 2010
• Docket Number: Case No. 1:09 CV 512
• Parties: Gina Marie LAUSIN, by and through her mother, Sharon LAUSIN, et al., Plaintiffs, v. Nathan BISHKO, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

727 F.Supp.2d 610

Gina Marie LAUSIN, by and through her mother, Sharon LAUSIN, et al., Plaintiffs,

v.Nathan BISHKO, et al., Defendants.

Case No. 1:09 CV 512.

United States District Court,

N.D. Ohio,

Eastern Division.

July 15, 2010.

Gerald R. Walton, John J. Schneider, Law Office of Gerald R. Walton, Cleveland, OH, for Plaintiffs.

James A. Climer, John D. Pinzone, Mazanec, Raskin Ryder & Keller, Solon, OH, David Kane Smith, Elise Camitta Keating, Sherrie Clayborne Massey, Britton, Smith, Peters & Kalail, Independence, OH, Aimee Weiss Lane, R. Todd Hunt, Aimee Weiss Lane, R. Todd Hunt, Walter & Haverfield, Cleveland, OH, for Defendants.

MEMORANDUM OPINION

DONALD C. NUGENT, District Judge.

This matter is before the Court on the Motion of Defendants Nathan Bishko, Terry Wallace, Walter Calinger and Richmond Heights Board of Education for Summary Judgment (ECF # 39) and the Motion of Defendants Michael Gerl, Denise DeBiase and the City of Richmond Heights for Summary Judgment. (ECF # 41) For the reasons set forth below, the Defendants' Motions are hereby GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND ¹

Plaintiff Gina Lausin was a student at Richmond Heights High School when the incident at issue occurred. On the morning of March 21, 2006, a threatening message was found on the wall of the girl's restroom at Richmond Heights High School. (Nathan Bishko Dep. at p. 7) The message stated: "At 12 o'clock Tuesday I will kill all black niggers with my pistol". (photograph of writing is Ex. H to Sharon Lausin Depo.) The message was discovered by two students at approximately 8:00 a.m. The students immediately informed the Dean of Students, Defendant Nathan Bishko, of the message. (Bishko Depo. at p. 16-17). Mr. Bishko and director of school security, Russell White, reviewed video of students entering the girl's restroom prior to discovery of the threatening message. ( Id.) The video showed Gina Lausin entering the girl's restroom shortly before the message was discovered.²Based upon his previous contact with Ms. Lausin, including her complaints about an African-American student and other comments made by Ms. Lausin regarding African-American students and her general unhappiness at Richmond Heights High, Mr. Bishko decided to investigate her possible involvement in this incident. ³ ( Id.) While Mr. Bishko was investigating the matter, school officials contacted the Richmond Heights Police Department to assist with security and the investigation of the threat. (Wallace Depo. at p. 18) The School took pictures of the threatening writing on the bathroom wall and then cleaned the wall before the police arrived. (Bishko Depo at p. 16-17).

Ms. Lausin was summoned to Defendant, Principal Terry Wallace's office to discuss the message. (Gina Lausin Depo. at p. 46; Wallace Depo at p. 14-15). Sharon Lausin, Gina's mother was also present during the meeting with Dr. Wallace. Also present at that meeting were Mr. Bishko and Mr. White. (Gina Lausin Depo at p. 60; Wallace Depo at p. 14-15). Dr. Wallace showed Sharon Lausin a photograph of the threatening message. (Sharon Lausin Depo at p. 26). Dr. Wallace asked Gina if she had written the threatening message on the wall. Gina denied writing the message on the wall. (Gina Lausin Depo at p. 61). At the request of Mr. Bishko Gina provided the school with written homework assignments in order to compare her writing to the writing on the bathroom wall. (Bishko Depo at pp. 31-32). Thereafter, Sharon Lausin asked if they could leave and Gina and her mother left the school. (Sharon Lausin Depo at pp. 30-31).

Dr. Wallace states that additional students were questioned by school officials and that Gina's locker was searched and notes containing racial slurs that had been exchanged between Gina and her friend were discovered. (Wallace Depo at pp. 13-14, 20) All of the information gathered during the school's investigation was turned over to the Richmond Heights Police Department. (Bishko Depo at p. 33).

Defendant Richmond Heights police detective Denise DeBiase, reported to the high school at about 11:00 a.m. for "officer presence." At that time the school was fairly chaotic because many parents were picking up their children and other students were attempting to contact their parents. (DeBiase Depo at pp. 13-14 and DeBiase Report p. 1). Detective DeBiase met with Principal Wallace who advised her that the school had compiled a list of potential suspects and directed her to meet with Mr. Bishko about the surveillance video and the suspects observed. ( Id.) Mr. Bishko advised Detective DeBiase that they had searched the lockers of all of their potential suspects and interviewed some of the students, all of whom denied writing the threat. Based upon the video and his personal experience with the students, Mr. Bishko thought that Gina Lausin was a possible suspect and explained that she was calm during her interview, which was unusual for her as she would normally have become defensive. ( Id.)

At the request of the school, Police Chief Rowe, Lieutenant Robert Glaettli and Defendants Sgt. Gerl and Detective DeBiase met at the Board of Education at approximately 1:30 p.m. with Defendant Walter Calinger, Superintendent of the Richmond Heights Schools, Dr. Wallace, Mr. Bishko and Mr. White. (Rowe Aff. ¶ 5). The school officials advised the police that based upon the surveillance video and comparison of Ms. Lausin's written homework and the threatening message, as well as her prior racial comments to Mr. Bishko, that Gina Lausin was a primary person of interest. (Gerl Depo at pp. 16-19).

After that meeting, Mr. Bishko and Mr. White, in the presence of Sgt. Gerl and Detective DeBiase searched Gina Lausin's locker for additional school papers. (Gerl Depo at 20; DeBiase Depo at p. 31). A notebook with racial slurs was found, as well as a statement written on the inside of the locker which stated "I hate this f* * *ing school." (Gina Lausin Depo at pp. 68-69; Gerl Depo. at pp. 20-21). Based upon the similarities between the handwriting samples taken from Gina's locker and the handwriting of the threat, as well as the information provided by the school, Sgt. Gerl and Detective DeBiase determined that Gina was a primary person of interest and should be questioned first. (Gerl Depo at pp. 23-24; DeBiase Depo at pp. 35-36).

Later that afternoon, Sgt. Gerl and Detective DeBiase went to the Lausin residence. (Gerl Depo at p. 28) Gina's mother Sharon Lausin told the officers that Gina did not write the threat. (DeBiase Depo at pp. 36-37). Sgt. Gerl and Detective DeBiase told Sharon Lausin that they wanted to take Gina to the police station for questioning. (Gerl Depo at 29). Sharon Lausin did not object and Gina voluntarily got into the back seat of the police car without handcuffs. (DeBiase Depo at pp. 37-38; Gina Lausin Depo at p. 144). The officers told Sharon Lausin she could come to the police station in her own car. (Gerl Depo at p. 30)

At the police station, Gina was taken to an interview room and read her Miranda rights. (Rowe Aff. ¶ 6). Gina stated that she understood her rights and did not ask for an attorney or her mother to be present, even though she knew her mother was at the police station. (Gerl Depo at p. 42; Rowe Aff. ¶ 5; Gina Lausin Depo at. pp. 101, 146-147). The entire interview was videotaped and Gina Lausin was aware of that fact. (Rowe Aff. ¶ 6; Gina Lausin Depo at pp. 145-146). Sgt. Gerl and Detective DeBiase described the evidence indicating that Gina had written the threat. Gina initially denied writing the threat but after further discussions with the officers admitted to writing the threatening message. (See transcript of videotaped interview submitted as Ex. 1 to Affidavit of Amy K. Sanovich). The actual interview lasted about 15-20 minutes. (Gerl Depo at p. 48; DeBiase Depo at p. 48). Gina wrote a statement confessing to writing the threat and apologizing for her actions. Sgt. Gerl and Detective DeBiase witnessed Gina sign her confession. (DeBiase Depo at p. 54).

The police notified the school that Gina had signed a written confession. (Bishko Depo at p. 45; Gerl Depo at p. 57). Thereafter, Dr. Wallace, Mr. Bishko and Mr. White held a suspension hearing at the police station. The hearing was attended by school officials Wallace, Bishko and White and Gina and Sharon Lausin. (Bishko Depo at pp. 146-49) Gina was informed of the reason for the suspension hearing and was given an opportunity to speak. Once again she confessed to writing the threat on the wall. ( Id.; Calinger Depo at pp. 33, 38) Dr. Wallace read a Notice of Removal and/or Intended Actionand told Gina she would be suspended for ten days because of her actions. Gina signed the suspension form. (Gina Lausin Depo at pp. 103-104 and Ex. D-suspension form)

The school officials advised Detective DeBiase that they would issue a statement to the media that appropriate action had been taken and a suspect had been identified. (Rowe Aff. ¶ 5)

Detective DeBiase met with the County juvenile prosecutor who advised that Gina Lausin would be charged as being delinquent for inducing panic, criminal mischief and ethnic intimidation. ( Id.)

A school expulsion hearing was held on April 3, 2006, before the Richmond Heights Schools Superintendent Dr. Walter Calinger. (Calinger Depo at pp. 18-19) Gina was represented by an attorney at the hearing. Sharon and Gina Lausin both testified at the hearing. Gina presented expert testimony from an alleged polygraph expert and a report from an alleged handwriting expert. (Sharon Lausin Depo at pp. 57-59). Following the hearing, Dr. Calinger determined that Gina should be expelled for a period of 80 days. ( Id. at p. 59; Calinger Depo at pp. 37-38). Gina appealed the expulsion to the Richmond Heights Board of Education. (Sharon Lausin Depo at p. 60).

After a handwriting analyst reviewed Gina's handwriting samples and determined that no conclusive opinion could be offered as to whether or not Gina Lausin wrote the...