Perez et al v. St. Paul, City of et al

Filing 50

ORDER granting in part 31 defendants Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 5/19/2011. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 09-704(DSD/JJK)
Alberto Perez, Jr., through his
parent/legal guardian Alberto
Perez, Sr.
Plaintiffs,
ORDER

v.
City of St. Paul, Minnesota,
St. Paul Police Officers
John Gregory Corcoran, Erik. M.
Johnson and Anthony M. Reginek,
in their official and individual
capacities,
Defendants.

Jill Clark, Jill Clark P.A., 2005 Aquila Avenue North,
Golden Valley, MN 55427, counsel for plaintiffs.
Portia M. Hampton-Flowers, St. Paul City Attorney, 15
West Kellogg Boulevard, Suite 750, St. Paul, MN 55102,
counsel for defendants.

This matter is before the court upon the motion for summary
judgment by defendants City of St. Paul and St. Paul police
officers John Gregory Corcoran, Erik M. Johnson and Anthony M.
Reginek (officers).

Based on a review of the file, record and

proceedings herein, and for the following reasons, the court grants
the motion in part.

BACKGROUND
This excessive-force dispute arises out of a 911 call from 119
Front Avenue in St. Paul shortly before 9:00 p.m. on September 30,

2006.

Corcoran, Johnson and Reginek responded to the call.

Plaintiff

Alberto

Perez

Jr.

(Perez),

who

is

developmentally

disabled, lives at 113 Front Avenue, adjacent to 119 Front Avenue.
See Perez, Sr. Decl. ¶ 1, ECF No. 43.

Perez has an IQ of 45 and

“fine and gross motor skills adequate to meet his needs.”
1, at 1.

Id. Ex.

Although he “follows oral directions well,” he can be

difficult to understand.1

Id. at 2.

He “has a history of leaving

his family’s home without letting anyone know where he is going.”
Id.

The parties dispute the events that led to the interaction

between Perez and the officers.
According to defendants, Johnson and Reginek approached the
front door of 119 Front Avenue and Corcoran walked along the
driveway between 119 and 113 Front Avenue.

Corcoran Aff. ¶¶ 5–6.

Corcoran saw Perez exit the back door of 119 Front Avenue and walk
to the backyard of 113 Front Avenue.

Id. ¶ 7.

Corcoran yelled

“Police, Come Here” and Perez put his hand in his shirt or pocket
near his waistline.

Id. ¶ 9. Corcoran then directed Perez several

times to let him see his hands.

Id. ¶ 10–12.

and started walking towards Corcoran.

Id.

Perez did not comply
Corcoran drew his gun

and repeated his command; Perez did not comply and continued to
walk towards Corcoran.

Id. ¶ 12.

Corcoran commanded Perez to “get

on the ground,” and Perez did not comply.

1

Id. ¶ 13.

Corcoran then

According to his father, Perez is confused when new people
speak to him and does not understand what they are saying. See
Perez, Sr. Decl. ¶ 1.
2

kicked Perez in the stomach or chest to create space between them,
and Perez fell to the ground.

Id. ¶ 15.

Corcoran placed his foot

or knee on Perez’s back to restrain him, and Reginek helped place
Perez in handcuffs.

Id. ¶¶ 16–18.

By this time, people had

gathered and were yelling at the officers.
stood Perez up and searched him.
Perez was

developmentally

Id. ¶ 19.

disabled.

Id. ¶ 17.

Corcoran

Corcoran learned that

Id.

¶

20.

Thereafter,

Corcoran took Perez to his house, and explained the incident to his
father, Alberto Perez, Sr.

Id. ¶¶ 22–23.

According to Perez, two police officers approached him in the
driveway between 113 and 119 Front Avenue.

It appears that Perez

denies being inside the house at 119 Front Avenue.

See Carlos

Garcia Decl. ¶¶ 3, 10 (“Police came through the alley.

[Perez] was

in the alley .... He was on his property.”); see also Dorothea
Garcia Decl., Hudson Decl., Mack Decl. ¶ 9 (“[The police officers]
said ‘we were chasing someone and he was the one in the back yard
so we got onto him.’”), Perez, Sr. Decl. ¶ 3.
SuperAmerica cup.

Perez was holding a

See Carlos Garcia Decl. ¶ 2; Hudson Decl. ¶ 3.

The police officers said “where the gun,” “get down” and “get on
the ground” to Perez.
Mack Decl. ¶ 4.

Carlos Garcia Decl. ¶ 3; Hudson Decl. ¶ 8;

Perez remained standing.

Am. Compl. ¶ 6.

The

police officers walked up to Perez, kicked him in the chest and
“threw him to the ground.”

Hudson Decl. ¶ 2; see Carlos Garcia

Decl. ¶ 3; Mack Decl. ¶ 5–6.

An officer continued to point his gun

3

at Perez while they handcuffed him.

See Carlos Garcia Decl. ¶ 4.

When Perez turned his head, one police officer pushed him back down
with his foot on Perez’s back.
¶¶

5–6.

Neighbors

told

the

See id.; Dorotha Garcia Decl.
police

officers

that

Perez

is

“handicapped,” “disabled” and “retarded.” Carlos Garcia Decl. ¶ 4;
Dorotha Garcia Decl. ¶ 8.

Police officers kept Perez on the ground

for approximately fifteen minutes, and let him up when his father
came outside. Carlos Garcia Decl. ¶ 17; Dorotha Garcia Decl. ¶ 12.
Perez alleges that he suffers ongoing emotional distress as a
result of the incident.

Perez, Sr. Decl. ¶ 2.

On March 26, 2009,2 Perez filed this action under 42 U.S.C.
§ 1983, claiming that defendants violated his rights to due process
and equal protection and used excessive force.
for summary judgment.

Defendants moved

The court now considers the motion.3

DISCUSSION
Summary

judgment

is

appropriate

“if

the

pleadings,

the

discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”

2

Fed. R. Civ.

Perez amended his complaint on June 23, 2009.

3

Perez offers no evidence or argument in opposition to
defendants’ motion for summary judgment on his due process and
equal protection claims.
Therefore, the court grants summary
judgement on those claims.
4

P. 56(c);4 see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party.

See

id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.

The nonmoving party, however, may not rest upon

mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.

See

Moreover, if a plaintiff cannot support

each essential element of his claim, the court must grant summary
judgment because a complete failure of proof regarding an essential
element necessarily renders all other facts immaterial.

Id. at

322-23.
Section 1983 provides in relevant part:
Every person who, under the color of any
statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States
... to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law.

4

The court cites the Federal Rules of Civil Procedure in
effect at the time of the motion. Changes effective December 1,
2010, do not affect the outcome of this case.
5

Section 1983 is “‘not itself a source of substantive rights’” but
merely affords “‘a method for vindicating federal rights elsewhere
conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

Accordingly, a

court considering a § 1983 claim must first “identify the specific
constitutional right allegedly infringed.”

Id. at 271 (citing

Graham v. Connor, 490 U.S. 386, 394 (1989)).

Moreover, § 1983

liability “requires a causal link to, and direct responsibility
for, the deprivation of rights.”

Mayorga v. Missouri, 442 F.3d

1128, 1132 (8th Cir. 2006) (quotation omitted).
I.

Individual-Capacity Liability
Perez claims that Corcoran, Reginek and Johnson violated his

Fourth Amendment right to be free from excessive use of force.

The

officers argue that they are entitled to qualified immunity because
the undisputed facts do not support Perez’s claims that defendants
violated his constitutional rights.
Qualified immunity protects government agents who perform
discretionary functions from civil liability, so long as the
challenged actions are objectively reasonable in light of clearly
established legal principles.
635, 638 (1987).

See Anderson v. Creighton, 483 U.S.

Qualified immunity is a question of law that the

court determines “at the earliest possible stage in litigation” to
shield appropriate officials from suit.
S. Ct. 808, 815 (2009).

Pearson v. Callahan, 129

“An official is entitled to qualified

6

immunity against a § 1983 action unless (1) the facts, construed in
the light most favorable to the party seeking damages, establish a
violation of a constitutional or statutory right, and (2) the right
was clearly established at the time of the violation.” McKenney v.
Harrison, 635 F.3d 354, 358 (8th Cir. 2011) (citing Pearson, 129 S.
Ct. at 815–16).

The court applies the doctrine of qualified

immunity in a manner that “‘gives ample room for mistaken judgments
by

protecting

all

but

the

plainly

knowingly violate the law.’”

incompetent

or

those

who

Walker v. City of Pine Bluff, 414

F.3d 989, 992 (8th Cir. 2005) (quoting Hunter v. Bryant, 502 U.S.
224, 229 (1991)).
An

officer

violates

the

Fourth

Amendment

when

he

excessive force in the apprehension or detention of a person.
Graham, 490 U.S. at 395.

uses
See

“To establish a constitutional violation

under the Fourth Amendment’s right to be free from excessive force,
the test is whether the amount of force used was objectively
reasonable under the particular circumstances.”
Golden Valley,

574

F.3d

491,

496

(8th

Cir.

Brown v. City of
2009)

(citations

omitted).
“The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.”

Graham, 490 U.S.

at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).

The

“calculus of reasonableness must embody allowance for the fact that

7

police officers are often forced to make split-second judgments –
in circumstances that are tense, uncertain, and rapidly evolving –
about the amount of force that is necessary in a particular
situation.”

Id. at 396-97; see Brown, 547 F.3d at 496.

“[T]he

right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat
thereof to effect it.”

Cook v. City of Bella Villa, 582 F.3d 840,

849 (8th Cir. 2009) (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)).

“Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.”

Id.

When evaluating an officer’s use of force, a court considers
the totality of the circumstances and pays “careful attention to
the facts and circumstances of [the] particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether [s]he is actively resisting arrest or attempting to evade
arrest by flight.”

Graham, 490 U.S. at 396.

To establish a claim

of excessive force, a plaintiff must show actual injury, which is
more than de minimis, but less than significant.

See Crumley v.

City of St. Paul, 324 F.3d 1003, 1007 (8th Cir. 2003); Dawkins v.
Graham, 50 F.3d 532, 535 (8th Cir. 1995).

8

More than minor injury

resulting from the application of handcuffs is required to support
an excessive force claim.

Hanig v. Lee, 415 F.3d 822, 824 (8th

Cir. 2005) (citing Crumley, 324 F.3d at 1008).
Viewing the facts and inferences in the light most favorable
to Perez, disputed material facts prevent disposition of the
qualified immunity claim and preclude summary judgment.

First,

determination of whether the initial encounter between police and
Perez was reasonable under the circumstances depends on whether
police had reasonable suspicion that Perez was involved in criminal
activity.

Perez argues that he did not exit 119 Front Avenue, but

rather was standing in his backyard.

In the context of responding

to a 911 call, seeing Perez exit the residence would provide
reasonable suspicion to stop him; however, if Perez were merely
standing in his yard observing, the facts would not provide a basis
for reasonable suspicion. In addition, the parties dispute whether
Perez walked toward the officers or the officers instead advanced
on Perez.

Compare Corcoran Aff. ¶¶ 11, 13, with Hudson Aff. ¶ 2.

They also dispute the amount of lighting in the yard, and therefore
how much the officers could see.

Compare Corcoran Aff. ¶ 9, with

Hudson Aff. ¶ 4. As a result, a question remains about whether the
initial contact was reasonable.5

5

Accepting Perez’s version of the facts, the officers’
actions were objectively reasonable once they initiated contact
with Perez. They ordered Perez to show his hands. He did not
comply, and although he had a cup in one hand, the officers could
(continued...)
9

Moreover,

a

dispute

remains

about

the

events

after

the

officers restrained Perez and learned that he was developmentally
disabled.

According to the officers, they quickly brought him to

his feet, and then took him home.

According to Perez, the officers

forced him to lie on the ground for 15 minutes until his father
came outside.

Viewing the facts and inferences in the light most

favorable to Perez, the court cannot determine whether continued
use of force was objectively reasonable.

Therefore, summary

judgment is not warranted on the excessive force claim.
II.

Municipal Liability
Municipalities are not vicariously liable under § 1983 for an

employee’s unconstitutional acts.

Szballa v. City of Brooklyn

Park, 486 F.3d 385, 389 (8th Cir. 2007) (en banc) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). Rather, municipal
liability exists only if a plaintiff can establish that (1) “a
particular municipal policy or custom itself violates federal law,

5

(...continued)
not see his other hand.
In the context of an uncertain and
potentially unstable situation, the failure to comply with
directions raises significant safety concerns for both the officers
and the public.
A reasonable officer in this situation would
believe that Perez might have a weapon.
His developmental
disability does not diminish the reasonable concern that he might
pose a danger to officer and public safety. See Hassan v. City of
Minneapolis, Minn., 489 F.3d 914, 919 (8th Cir. 2007).
The
physical force used to gain control of Perez was a reasonable
response to his failure to comply. Once Perez was restrained in
handcuffs, pressure on his back or neck in response to his
movements is also a reasonable response. Police officers have a
duty to gain and maintain control of a situation, and the manner in
which the officers did so here is well within the bounds of reason.
10

or directs an employee to do so” or (2) “where a facially lawful
municipal policy or custom was adopted with deliberate indifference
to its known or obvious consequences.

Moyle v. Anderson, 571 F.3d

814, 817-18 (8th Cir. 2009) (citation and internal quotation marks
omitted).

To establish deliberate indifference, a plaintiff must

prove that the municipality “had notice that its procedures were
inadequate and likely to result in a violation of constitutional
rights.”

Jennings v. Wentzville R-IV Sch. Dist., 397 F.3d 1118,

1122 (8th Cir. 2005) (citation omitted). Notice is implied if “the
failure to train is so likely to result in a constitutional
violation that the need for training is patently obvious.”

Id.

Perez argues that St. Paul has “a policy or custom of abusing
the developmentally disabled” by “not taking into account the
disability in interacting with these citizens” or that it “failed
sufficiently to train police personnel about how best to interact
with developmentally disabled citizens.”

Am. Compl. ¶ 11.

Even if the individual officers violated the constitutional
rights of Perez, he does not identify any particular policy or
custom that facially or indifferently caused violation of the law.
Instead,

Perez

developmentally
violations.

argues

that

disabled

the

lack

persons

of

causes

a

policy
Fourth

regarding
Amendment

In general, a single violation of a constitutional

right does not support a finding of municipal liability.
Szballa, 486 F.3d at 393.

See

There is no evidence that St. Paul has

11

a

history

of

unconstitutional

developmentally

disabled

arrests

individuals,

or

additional specific training was plain.

of

force

on

that

such

use

the

need

for

Id. at 392.

In short,

there is no evidence of any St. Paul policy — or lack of policy —
that causes officers to violate the constitutional rights of
developmentally disabled individuals.
Further, the record demonstrates that St. Paul had policies
for transporting persons with mental and physical disabilities and
for interacting with emotionally disturbed persons, which included
those considered “retarded.”

Hampton-Flowers Aff. Ex. F; accord

Anthony v. City of New York, 339 F.3d 129, 140 (2d Cir. 2003)
(training

police

officers

in

interaction

with

“emotionally

disturbed persons” precluded Monell claim by person with Down
syndrome).
Communication:

St.

Paul

Human

also

Relations

Enforcement” and “Verbal Judo.”
2.

trains
and

officers
Problem

in

Solving

“Tactical
for

Law

Hampton-Flowers Aff. Exs. H-1, H-

These training sessions addressed barriers to communication,

including the inability of the receiver to decode or process what
the officer is saying.

See id.

Such training undermines Perez’s

municipal-liability claim.
Lastly,

Perez

argues

that

officers

should

recognize

developmentally disabled persons based on “the visual look of
developmentally disabled like Alberto Jr.”

Pl.’s Mem. Opp’n 22.

Developmental disabilities, however, constitute a wide variety of

12

disabilities “attributable to a mental or physical impairment or
combination
§ 15002.

of

mental

and

physical

impairments.”

42

U.S.C.

Common to those disabilities — and relevant here — are a

variety of mental and physical barriers to effective communication.
Effective communication with a broad range of persons is precisely
the type of training that St. Paul provides.

Therefore, the claim

fails, and summary judgment is warranted in favor of St. Paul.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion for summary judgment [ECF 31] is granted in part:
1.

The motion is denied as to the excessive-force claim

against Corcoran, Johnson and Reginek;
2.

The motion is granted as to all parties for the due

process and equal protection claims; and
3.

The motion is granted as to the municipal-liability claim

against St. Paul.
Dated:

May 19, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court

13