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Perkins v. City of Rochester

June 30, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge



Plaintiff Katrina Perkins ("plaintiff"), as natural guardian and parent of Lashedica Mason ("Lashedica"), brings this action against defendant the City of Rochester (the "City"). Plaintiff alleges that on July 10, 2005, the City failed to properly train and supervise its employees, and failed to properly respond to a 9-1-1 call for emergency assistance made by Perkins, resulting in Lashedica's being shot and injured by a City police officer, all negligently and in violation of 42 U.S.C. §1983.

On the evening of July 10, 2005, plaintiff called the City's 9-1-1 emergency number from her address at 30 St. Jacob Street, Rochester, and requested that "someone come out please" to assist with her 13-year-old daughter Lashedica, who had locked herself in an upstairs bathroom with a knife and was threatening to harm herself. The 9-1-1 operator told plaintiff that police and ambulance services were being dispatched.

City police officer Mark Simmons ("Simmons") was the first to arrive on the scene. He was greeted outside the door of the home by another of plaintiff's daughters, fourteen-year-old Equilla Perkins ("Equilla"). Equilla explained that Lashedica was still upstairs with a knife, and she brought Officer Simmons into the house. As Equilla and the officer stepped inside the home, they entered the family room, where plaintiff and some of her other children, including eighteen-year-old Lakeyria Mason, as well as grandchildren, were gathered. Moments later, Lashedica emerged from upstairs and stepped into the adjacent kitchen, where she proceeded to rattle some items in or around a dish rack as Officer Simmons asked the family, "is this her?" Before anyone could respond, Lashedica exited the kitchen and walked or ran toward Equilla, who was standing slightly in front of Officer Simmons. Plaintiff's and Lashedica's initial statements to police, as well as Lashedica's initial deposition and all of the other statements and deposition testimony by Equilla, Lakeyria and Officer Simmons, reported that Lashedica was holding a kitchen knife in one hand, and a telephone in the other.*fn1 As Lashedica drew within eight feet of Equilla and Officer Simmons, he swept Equilla behind him, backed toward the door, drew his service weapon, and fired at Lashedica, injuring her.*fn2

The City now moves for summary judgment pursuant to Fed. R. Civ. Proc. 56 to dismiss plaintiffs' claims, on the grounds that it did not maintain any unconstitutional policy or practice relative to 9-1-1 call responses, that the City's response was not negligent in any event, and that the City is entitled to governmental immunity. For the reasons set forth below, the City's motion for summary judgment (Dkt. #11) is granted and the complaint is dismissed.


I. Summary Judgment

Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).

II. Plaintiff's Claims Pursuant to Section 1983

The Court notes initially that plaintiff has not opposed the defendant's motion insofar as it seeks to dismiss plaintiff's Section 1983 claim. Thus, the only question for the Court to determine is whether, on the present record, the City is entitled to judgment as a matter of law on that claim.

In order to maintain a cause of action pursuant to Section 1983, a plaintiff must demonstrate that the City violated her Constitutional or federal statutory rights, and that the City did so while acting under color of state law. See Parratt v. Taylor, 451 U.S. 527, 535 (1981). Where a Section 1983 claim is alleged against a municipality on the grounds of unconstitutional acts by its employees, a plaintiff must demonstrate that her injuries resulted from a municipal policy, custom, or practice. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (a municipality "may not be sued under §1983 for an injury inflicted solely by its employee . . . it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under §1983").

Here, plaintiff alleges that the City maintains a custom, policy and practice of failing to deploy appropriately trained personnel to service calls involving emotionally disturbed persons, and argues that Lashedica would never have been injured on July 10, 2005 had a member of the Rochester City Police Department's Emotionally Disturbed Persons Response Team ("EDP Team") been dispatched to assist her.

"To show a policy, custom, or practice, the plaintiff need not identify an express rule or regulation." See Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004). Rather, a plaintiff may satisfy her burden by showing, "for example, that [the unconstitutional] practice of municipal officials was so 'persistent or widespread' as to constitute 'a custom or usage with the force of law,' or that [an unconstitutional] practice of subordinate employees was 'so manifest as to imply the constructive acquiescence of senior policy-making officials.'" Id., 375 F.3d 206 at 226, quoting Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870-871 (2d Cir. 1992). However, "a single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice ...

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