Perez et al v. St. Paul, City of et al
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
City of St. Paul, Minnesota,
St. Paul Police Officers
John Gregory Corcoran, Erik. M.
Johnson and Anthony M. Reginek,
in their official and individual
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.
Based on a review of the file, record and
proceedings herein, and for the following reasons, the court grants
the motion in part.
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,
Corcoran, Johnson and Reginek responded to the call.
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.
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.”
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.
“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.
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.
Id. ¶ 13.
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.
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.
Id. ¶ 19.
Id. ¶ 17.
Corcoran learned that
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.
Garcia Decl. ¶¶ 3, 10 (“Police came through the alley.
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.
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.
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
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.
See id.; Dorotha Garcia Decl.
“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.
The court now considers the motion.3
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.”
Fed. R. Civ.
Perez amended his complaint on June 23, 2009.
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.
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
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.
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.
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.
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.
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.
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)).
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).
Perez claims that Corcoran, Reginek and Johnson violated his
Fourth Amendment right to be free from excessive use of force.
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
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
knowingly violate the law.’”
Walker v. City of Pine Bluff, 414
F.3d 989, 992 (8th Cir. 2005) (quoting Hunter v. Bryant, 502 U.S.
224, 229 (1991)).
excessive force in the apprehension or detention of a person.
Graham, 490 U.S. at 395.
“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.”
Brown v. City of
“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)).
“calculus of reasonableness must embody allowance for the fact that
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
Id. at 396-97; see Brown, 547 F.3d at 496.
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
“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth
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).
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.
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
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
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
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
officers restrained Perez and learned that he was developmentally
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
Viewing the facts and inferences in the light most
favorable to Perez, the court cannot determine whether continued
use of force was objectively reasonable.
judgment is not warranted on the excessive force claim.
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,
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.
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).
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.
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
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
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.”
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.
In general, a single violation of a constitutional
right does not support a finding of municipal liability.
Szballa, 486 F.3d at 393.
There is no evidence that St. Paul has
additional specific training was plain.
Id. at 392.
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)
disturbed persons” precluded Monell claim by person with Down
Enforcement” and “Verbal Judo.”
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.
Such training undermines Perez’s
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
disabilities “attributable to a mental or physical impairment or
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.
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion for summary judgment [ECF 31] is granted in part:
The motion is denied as to the excessive-force claim
against Corcoran, Johnson and Reginek;
The motion is granted as to all parties for the due
process and equal protection claims; and
The motion is granted as to the municipal-liability claim
against St. Paul.
May 19, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
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