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Alejandra Perez, As Administrator of the Estate of Carlos Perez v. Town of Cicero

September 30, 2011

ALEJANDRA PEREZ, AS ADMINISTRATOR OF THE ESTATE OF CARLOS PEREZ, PLAINTIFF,
v.
TOWN OF CICERO, CICERO POLICE DEPARTMENT, ) RAMON PORTILLO, RAFAEL GUERRERO, AND EDDIE ) PEREZ, DEFENDANTS.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiff Alejandra Perez, as administrator of the estate of her son, Carlos Perez, filed this suit against the Town of Cicero, the Cicero Police Department, and three John Doe police officers, alleging violations of federal and state law in connection with Carlos' death on September 14, 2005. The Town of Cicero was dismissed due to Plaintiff's failure to allege a municipal policy or custom, and the Cicero Police Department was dismissed because it is not a legal entity that can be sued. Doc. 31 (Andersen, J.). Plaintiff filed an amended complaint naming Cicero police officers Ramon Portillo, Rafael Guerrero, and Eddie Perez; the amended complaint sets forth a Fourteenth Amendment claim under 42 U.S.C. § 1983 alleging deliberate indifference to Carlos' medical needs and a state law claim for "willful and wanton conduct." Doc. 35. The court granted Plaintiff's motion to voluntarily dismiss Officers Portillo and Guerrero, Doc. 66 (Cox, M.J.), which left only the claims against Officer Perez. Officer Perez has moved for summary judgment. The motion is granted.

Background

The facts are set forth as favorably to Plaintiff as the record permits. Between 5:30 and 6:00 a.m. on September 14, 2005, officers from the Cicero Police Department were dispatched to Plaintiff's home in response to a call regarding a domestic disturbance between Carlos and his brother, Jose Perez. Doc. 96 at ¶¶ 6, 16; Doc. 106 at ¶¶ 6, 16. Three officers eventually arrived at the scene: Officer Perez and non-defendants Robert Gordon and Robert Richert. Doc. 96 at ¶ 7; Doc. 106 at ¶ 7. By the time Officer Perez arrived, the situation was "calmed down"; there were no signs of violence or a struggle, and Carlos was "calm and softspoken" and not making threats to anyone. Doc. 96 at ¶¶ 8, 10; Doc. 106 at ¶¶ 8, 10. Significantly for present purposes, Carlos "made no mention of suicidal thoughts" and "did not appear to be suicidal." Doc. 96 at ¶ 11; Doc. 106 at ¶ 11. That said, Carlos "was saying odd things, not making sense, using curse words and speaking to himself," and "was not acting like a person in control of himself." Doc. 106 at ¶ 9.

Members of Carlos' family told the officers that Carlos needed help and asked them to call an ambulance so that he could be taken to a hospital. Doc. 106 at ¶ 11. The officers did not call an ambulance, and neither did members of Carlos' family. Doc. 96 at ¶ 12; Doc. 106 at ¶¶ 11-12, 20; Doc. 110 at ¶ 20. Jose declined to sign a complaint against Carlos. Doc. 96 at ¶ 13; Doc. 106 at ¶ 13. The officers nonetheless took custody of Carlos because they suspected that he was the "Carlos Perez" wanted on a warrant from California. Doc. 106 at ¶ 14. Carlos was handcuffed, taken from the house, and placed in a patrol car. Id. at ¶ 15. It turned out that Carlos had no active warrants, so he was released moments later. Doc. 96 at ¶¶ 14, 16; Doc. 106 at ¶¶ 14, 16.

Neither Officer Perez nor the two other officers communicated or interacted with Carlos after his release. Doc. 96 at ¶ 16; Doc. 106 at ¶ 16. Later that morning, while no longer in custody, Carlos walked onto the train tracks and was struck and killed by a train in an incident later ruled a suicide. Doc. 96 at ¶ 17; Doc. 106 at ¶ 17. Carlos had cocaine and metabolized cocaine in his blood at the time of his death. Doc. 106 at ¶ 19; Doc. 110 at ¶ 19.

Cicero police had responded to calls from Plaintiff's residence on two prior occasions: May 29, 2005, and July 30, 2005. Doc. 96 at ¶ 18; Doc. 106 at ¶ 18. During the May 29 episode, Carlos was agitated, angry and shouting, and told Officer Portillo (one of the officers named in the amended complaint but later dismissed) that he wanted Portillo's gun to shoot himself. Ibid. For the safety of Carlos and the officers, Carlos was handcuffed and the officers called an ambulance that transported him for evaluation. Ibid. Officer Perez was not involved in the May 29 or July 30 incidents and had no knowledge of them on September 14, the date of the incident underlying this case. Doc. 96 at ¶ 19; see Doc. 106 (in which Plaintiff fails to offer any response to ¶ 19 of Officer Perez's Local Rule 56.1(a) statement).

One additional factual issue will be addressed before proceeding. In her brief opposing summary judgment, Plaintiff asserts that Officer Perez told Carlos upon releasing him that he could not return home. Doc. 105 at 2, 3-4. This factual assertion will not be considered for two separate and independent reasons. First, the fact is not included either in Plaintiff's Local Rule 56.1(b)(3)(A)-(B) response to Officer Perez's Local Rule 56.1(a)(3) statement or in her Local Rule 56.1(b)(3)(C) statement of additional facts. Doc. 106. Under settled law, facts asserted in a brief but not presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment motion. See Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (predecessor to Local Rule 56.1(b)(3) "provides the only acceptable means of . presenting additional facts to the district court"); Garner v. Lakeside Cmty. Comm., 2011 WL 2415754, at *1 n.1 (N.D. Ill. June 13, 2011) ("the Court disregards any additional statements of fact contained in a party's response brief but not in its L.R. 56.1(b)(3)[] statement of additional facts"); Byrd-Tolson v. Supervalu, Inc., 500 F. Supp. 2d 962, 966 (N.D. Ill. 2007) ("facts are properly presented through the framework of the Rule 56.1 statements, and not through citation in the briefs to raw record material"). Second, even putting aside Local Rule 56.1, the record citations identified by Plaintiff-page 20 of Maria Perez's deposition testimony, and the CFS Report of September 14, 2005-do not support the factual proposition that Officer Perez told Carlos that he could not return home. Plaintiff did not include page 20 of Maria Perez's deposition in the record. Doc. 107 at 35-43 (reproducing pages 1-2, 12, 14, 16-19, and 23 of Maria Perez's deposition). Neither did Officer Perez. Doc. 96-1 at 66-73 (reproducing pages 1, 9-10, 12, 16-18, and 22 of Maria Perez's deposition). And while the CFS Report is included in the record, it does not provide any information as to what Officer Perez might have told Carlos when releasing him from custody. Doc. 107 at 55-56.

Discussion

I. Fourteenth Amendment Claim

The amended complaint purports to state a Fourteenth Amendment due process claim against Officer Perez for deliberate indifference to Carlos' medical needs. Doc. 35 at ¶¶ 34-36. The pertinent paragraph of amended complaint alleges that Officer Perez was "aware of but deliberately, willfully, and wantonly ignored the obvious serious mental health needs of Carlos and his substantial risk of serious injury and death, and purposely neglected and failed to take appropriate steps to protect him." Id. at ¶ 35. Officer Perez's summary judgment motion sought judgment on what he had every reason to believe was a due process claim premised on a deliberate indifference to medical needs theory. Doc. 95 at 3-12. In her opposition brief, however, Plaintiff switched gears, defending her due process claim not under a deliberate indifference theory, but on the "state-created danger" exception to DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). Doc. 105 at 3-7. In so doing, Plaintiff forfeited her due process claim insofar as it rests on a deliberate indifference to medical needs theory. See Witte v. Wis. Dep't of Corr., 434 F.3d 1031, 1038 (7th Cir. 2006) (party forfeits arguments that are not raised in the party's brief opposing summary judgment); Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003) (claim deemed abandoned where the plaintiff "failed to delineate his negligence claim in his district court brief in opposition to summary judgment").

The deliberate indifference theory fails on the merits in any event. The court will accept the amended complaint's implicit submission that Carlos, during his brief time in police custody, was a pretrial detainee protected by the Fourteenth Amendment. To prevail on a Fourteenth Amendment deliberate indifference claim, the plaintiff "has the burden of showing that (1) the harm to the plaintiff was objectively serious; and (2) that the official was deliberately indifferent to [his] health or safety." Williams v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007) (brackets in original, internal quotation marks omitted). To satisfy the second element of this claim in the context of a suicide, Plaintiff must demonstrate that Officer Perez: (1) subjectively knew [Carlos] was at substantial risk of committing suicide and (2) intentionally disregarded the risk." Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010) (internal quotation marks omitted).

No reasonable juror could find that Officer Perez subjectively knew that Carlos was at substantial risk of committing suicide, let alone that he intentionally disregarded that risk. It is undisputed that on the morning in question, Carlos made no mention of suicidal thoughts and did not appear to be suicidal. It is further undisputed that Officer Perez did not know that Carlos had told Officer Portillo during the May 29 incident that he wanted Portillo's gun to shoot himself. That Carlos behaved strangely in front of Officer Perez-saying odd things, not making sense, using curse words, speaking to himself, and not acting like a person in control of himself-did not imbue Officer Perez with the subjective knowledge that Carlos was a suicide risk. The Seventh Circuit has held that "strange behavior alone, without indications that that behavior has a substantial likelihood of taking a suicidal turn, is not sufficient to impute subjective knowledge of a high suicide risk." Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003) (internal quotation marks omitted); see also Jutzi-Johnson v. United States, 263 F.3d 753, 757 (7th Cir. 2001) ("bizarre behavior and suicidal behavior are different, and there is no evidence that suicidal tendencies can be inferred from the kind of behavior that [decedent] exhibited"); Estate of Novack v. Cnty. of Wood, 226 F.3d 525, 529 (7th Cir. 2000) ("Mere knowledge that an inmate is behaving violently or 'acting in a "freaky" manner' is not sufficient to impute awareness of a substantial risk of suicide.") (internal quotation marks omitted). In Collignon v. Milwaukee County, 163 F.3d 982 (7th Cir. 1998), the Seventh Circuit went so far as to hold that "[p]lacing a pre-trial detainee on some level of suicide watch, even the highest level, does not demonstrate a subjective awareness of a substantial risk of imminent suicide." Id. at 990. Given these precedents, Officer Perez cannot possibly be found to have had a subjective awareness of the risk that Carlos would commit suicide upon his release. It follows that Plaintiff has no viable Fourteenth Amendment deliberate indifference to medical needs claim against Officer Perez.

As it happens, any claim Plaintiff might have had concerning Officer Perez's alleged failure to properly handle Carlos' medical needs arose from the Fourth Amendment, not the Fourteenth. In Williams v. Rodriguez, supra, the Seventh Circuit explained that "the Fourteenth Amendment's due process protections only apply to a pretrial detainee's confinement conditions after he has received a judicial determination of probable cause. Claims regarding conditions of confinement for pretrial detainees . who have not yet had a judicial determination of probable cause (a Gerstein hearing) are instead governed by the Fourth Amendment and its objectively unreasonable standard." 509 F.3d at 403 (citing Lopez v. City of Chi., 464 F.3d 711, 719 (7th Cir. 2006)); see also Ortiz v. City of Chi., __ F.3d __, 2011 WL 3841019, at *5 (7th Cir. Aug. 25, 2011); Sallenger v. City of Springfield, Ill., 630 F.3d 499, 503 (7th Cir. 2010). Because Carlos did not receive a judicial determination of probable cause, the Fourth Amendment ...


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