attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


Delgado v. Hajicek: US District Court : 1983 | 4TH AMENDMENT - citation or summons isn't a 4th Amendment seizure; probable cause

1 The Motion is brought on behalf of Hajicek and each of the John Doe Defendants.
Delgado has filed a Motion for Leave to Amend her Complaint to dismiss John Does 2 through 6
and to substitute East Grand Forks police officer Chris Olson for John Doe 1. Although the
Rosemary Delgado,
Civ. No. 07-2186 (RHK/RLE)
Rodney Hajicek, a detective and police officer
employed by the East Grand Forks Police
Department, in both his individual and official
capacities, et al.,
DeWayne A. Johnston, Johnston Law Office, Grand Forks, North Dakota, David C.
Thompson, David C. Thompson, PC, Grand Forks, North Dakota, for Plaintiff.
Jon K. Iverson, Susan M. Tindal, Iverson Reuvers, LLC, Bloomington, Minnesota, for
In this action, Plaintiff Rosemary Delgado has sued Rodney Hajicek, a police
officer employed by the City of East Grand Forks, Minnesota, as well as several John
Doe East Grand Forks police officers, alleging deprivations of her Fourth Amendment
rights. Defendants now move for summary judgment. For the reasons set forth below,
the Court will grant Defendants Motion.1
Motion was filed beyond the deadline for amendments in the Courts Scheduling Order and
Delgado has failed to show any good cause for her delay, the Court will grant the Motion.
Accordingly, the Court treats the Motion as if it were filed by Hajicek and Olson.
Delgado is a resident of Texas who sometimes travels to the Grand Forks area
during the summer to perform agricultural work. (Delgado Dep. at 6, 19.) She spends a
few months working in the fields there before returning to Texas. (Id. at 21.)
While staying in East Grand Forks during the summer of 2000, Delgado registered
to rent videos at a gas station/convenience store called East Grand Station. (Pl.
Interrogatory Responses 6.) In April 2001, the movie The Watcher was rented from
East Grand Station under Delgados account. (Delgado Dep. at 23-24, 28; Hajicek Dep.
Ex. 1.) Although East Grand Station believed that Delgado had rented the movie, it was
her nephew Rodger who had actually done so. (Delgado Dep. at 24, 28; Hajicek Dep. Ex.
1.) The movie was never returned.
On May 29, 2001, East Grand Station sent a certified letter to Delgado demanding
the return of the video. (Hajicek Dep. Ex. 1.) The letter was sent to the address East
Grand Station had on file for Delgado, which was actually her mothers address.
(Delgado Dep. at 28-32; Hajicek Dep. Ex. 1.) The letter went unclaimed and, ultimately,
was returned to East Grand Station by the post office because Delgado was not living
there when delivery was attempted. (Id.)
On July 2, 2001, East Grand Station contacted the East Grand Forks police
department concerning the overdue video. (Hajicek Dep. at 36 & Ex. 1.) The matter was
assigned to Hajicek. (Id. at 37.) After reviewing the information provided by the store,
on July 11, 2001, Hajicek issued a citation to Delgado for theft of the video. (Id. at 38-39
& Ex. 4.) The citation indicated that Delgado was to make an initial appearance on the
charge in the Polk County Courthouse in Crookston, Minnesota, on July 24, 2001. (Id.
Ex. 4.) The citation was mailed to Delgado at the same address to which East Grand
Stations certified letter had been sent. (Delgado Dep. at 24.)
Delgados mother received the citation in the mail in East Grand Forks and
forwarded it to Delgado in Texas. (Id. at 24.) Upon receiving the citation, Delgado
called Hajicek, who told her that she should call East Grand Station to clear up the
matter. (Id. at 25, 33.) She then telephoned the store and, after speaking with its owner,
she apparently was told that the matter had been straightened out and that she was not
responsible for the video. (Id. at 25, 34.) She then called Hajicek again and informed
him that she had been cleared up by East Grand Station, to which Hajicek replied
okay. (Id. at 35.) Delgado made no attempt to contact the Polk County court. (Id. at
Apparently believing that the matter had been resolved, Delgado did not show up
for the July 24, 2001, initial appearance. The matter had not been dismissed, however; as
a result of her failure to appear, the court issued an Order requiring Delgado to appear on
August 14, 2001. (Delgado Dep. Ex. 5; Hajicek Dep. Ex. 4.) Delgado apparently never
received that Order, and she once again failed to appear as ordered by the court.
2 There is some suggestion in Delgados brief that she was arrested due to her association
with several other individuals staying at the Howard Johnsons who were arrested that night for
drug possession. (See Mem. in Oppn at 10-11.) She later admits, however, that she was
arrested on a warrant based on her failure to appear in court. (Id. at 21.) That is consistent with
Delgados booking sheet, which indicates that she was arrested for Warrant Theft. (Hajicek
Dep. Ex. 1.)
(Delgado Dep. at 39-40 & Ex. 5.) The court then issued yet another Order directing
Delgado to appear on September 11, 2001, and further warned her that a warrant for her
arrest would be issued if she failed to appear once again. (Delgado Dep. Ex. 6.)
This time, Delgado received the courts Order in Texas; upon receipt, she called
Hajicek, but she did not reach him. (Delgado Dep. at 36, 41-42.) She left a message with
another police officer, asking for Hajicek to call her back. (Id. at 36, 42.) She never
heard back from Hajicek, however. (Id. at 42.) Nevertheless, she did not contact the
court or appear at the September 11, 2001, hearing. (Id. at 36, 42.) As a result, on
September 18, 2001, the Polk County court issued a warrant for Delgados arrest.
(Hajicek Dep. Ex. 4.) Since she was not then residing in Minnesota, the arrest warrant
was not executed at that time.
The following summer, Delgado traveled to East Grand Forks to perform
agricultural work. On July 31, 2002, she was staying at a Howard Johnsons hotel with
her five-year-old son when police officers, including Olson (but not Hajicek), arrived at
her door and stated that they had a warrant for her arrest. (Delgado Dep. at 44.)2 Olson
took Delgado into custody. (Olson Dep. at 45 & Ex. 1.) Delgado was tightly
handcuffed and placed into a squad car. (Delgado Dep. at 44.) She told Olson that the
3 No explanation for Delgados lengthy delay in filing suit is evident from the record.
handcuffs were hurting her wrists and asked him to loosed them, to no avail. (Id. at 44-
45, 51.) She was then transported to the East Grand Forks police station, where the
handcuffs were removed. (Id. at 46-48, 51.) A friend later posted bond for Delgado and
she was released. (Id. at 52.)
A few days later, East Grand Station informed the Polk County Court
Administrator that Delgado was not responsible for the overdue video. (Delgado Dep.
Ex. 7.) Then, on August 15, 2002, Hajicek wrote to the Court Administrator, stating
City Attorney Ron Galstad requests that I send a letter asking Court Administration to
dismiss the ticket for Rosemary Delgado. So, please dismiss. (Hajicek Dep. Ex. 1.)
The criminal case was then dismissed.
Approximately five years later, on May 4, 2007, Delgado commenced the instant
action against Hajicek, the John Doe police officers, and East Grand Station.3 She
alleged two main claims in her Complaint, both of which arise under the Fourth
Amendment of the United States Constitution: unlawful arrest (Count 1) and excessive
force (Count 2). She also alleged in Count 3 that East Grand Station was liable for her
allegedly unlawful arrest, but she later voluntarily dismissed that claim. Defendants now
move for summary judgment on the remaining claims in the Complaint (Counts 1 and 2).
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Id. at 322; Mems v. City of St. Paul, Dept of
Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must view the
evidence, and the inferences that may be reasonably drawn from it, in the light most
favorable to the nonmoving party. Graves v. Ark. Dept of Fin. & Admin., 229 F.3d 721,
723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.
1997). The nonmoving party may not rest on mere allegations or denials, but must show
through the presentation of admissible evidence that specific facts exist creating a genuine
issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik v.
County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
I. The official-capacity claims must be dismissed.
Delgado has sued Hajicek and Olson in both their individual and official
capacities. Although no party has addressed the official-capacity claims, the Court
concludes that those claims must be dismissed.
A suit against a public employee in his or her official capacity is merely a suit
against the public employer. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). A Section-1983
action against a public employer can succeed only if the plaintiff demonstrates, inter alia,
that its employees were implement[ing] or execut[ing] an unconstitutional policy or
custom. Id. In the absence of evidence indicating that such a policy or custom exists,
summary judgment against the plaintiff is appropriate. Id.
Here, Delgado has failed not only to proffer evidence of an unconstitutional policy
or custom, but she has failed to even plead that such a policy or custom exists.
Accordingly, her official-capacity claims must be dismissed. Id.; see also D.E.S. v.
Kohrs, 187 F.3d 641 (Table), 1999 WL 506121, at *2 (8th Cir. 1999) (unpublished)
(affirming dismissal of official-capacity claims where plaintiff had failed to plead
unconstitutional policy or custom).
II. The individual-capacity claims also must be dismissed.
A. No triable issue exists on the false-arrest claim (Count 1)
In Count 1 of her Complaint, Delgado appeared to assert a relatively
straightforward Fourth-Amendment claim. In the face of Defendants Motion for
Summary Judgment, however, Delgado or, perhaps more accurately, her counsel has
attempted to obfuscate the precise nature of that claim, apparently hoping that the
resulting confusion would permit that claim to survive summary judgment. For example,
Delgado now purports to assert that her hotel room was unlawfully searched on the date
she was arrested. (See Mem. in Oppn at 30-32.) Even under the most liberal reading of
the Complaint, however, Delgado nowhere remotely suggested that she was alleging a
claim arising out of an unlawful search by Defendants. Indeed, she did not mention the
search of her hotel room when reciting the events surrounding her arrest (see Compl.
26-30), nor did she mention the search anywhere in Count 1 (see id. 39-47), which
is simply entitled Unlawful Arrest. The most Delgado has alleged in Count 1 is that
(1) Hajicek violated her Fourth-Amendment rights when he issued the theft citation
without probable cause and (2) her Fourth-Amendment rights were violated when she was
arrested on the warrant for failure to appear. (See Compl. 40-47.) Regardless of
which theory she relies on, Defendants are entitled to summary judgment on Count 1.
Delgados first theory, which she characterizes in several different ways in her
Opposition, is that Hajicek violated her Fourth-Amendment rights by maliciously
prosecuting her for theft. (See Mem. in Oppn at 16-26.) Yet, one of the cases Delgado
cites which she claims is directly in point with the instant case (Mem. in Oppn at 17)
demonstrates why this claim cannot stand: the issuance of the theft citation by Hajicek
was not a Fourth-Amendment seizure. In DePiero v. City of Macedonia, 180 F.3d 770
(6th Cir. 1999), the plaintiff was issued a parking citation, and a court hearing on the
citation was scheduled for several weeks later. When the plaintiff failed to appear at that
hearing, a summons was mailed to his home address ordering him to appear at a
subsequent hearing. The summons warned the plaintiff that his failure to appear could
result in the issuance of an arrest warrant. The plaintiff failed to appear at the subsequent
hearing, and a warrant was issued for his arrest. The plaintiff was later stopped for a
traffic offense and taken into custody on the outstanding arrest warrant. He was
convicted of the offense in the citation, but his conviction was overturned on appeal. Id.
at 774-75.
The plaintiff then commenced a Section-1983 action alleging, inter alia, that his
Fourth-Amendment rights were violated because there existed no probable cause to issue
the citation. The district court dismissed that claim, and the Sixth Circuit affirmed. In
language equally applicable here, the court stated:
Plaintiff submits that . . . the issuance of a summons alone, without any faceto-
face encounter, may constitute a seizure of the person. Plaintiff relies upon
Justice Ginsburgs concurrence in Albright v. Oliver, 510 U.S. 266, 277-79
(1994), and the decision of the Sixth Circuit in Bacon v. Patera, 772 F.2d 259,
265 (6th Cir. 1985), for the proposition that a Fourth Amendment claim for
initiating criminal charges without probable cause may be brought in a case
where the police use a summons in lieu of an arrest. Both Albright and Bacon
are distinguishable from plaintiffs own predicament. Each of the cited cases
addressed a situation in which the plaintiff voluntarily responded to a
summons or arrest warrant, answered the charges against him, and was then
released on bond in lieu of remaining incarcerated until trial. Plaintiff cannot
claim issuance of the traffic ticket effected a seizure because upon appearing
to answer the charges in the ticket, he would have been afforded a trial. On the
date he was issued the parking ticket, he was free to leave. As a result,
plaintiff has no 1983 claim against [the officer] for issuance of the ticket. It
was not until he failed to appear for the hearing on the traffic citation that an
arrest warrant or summons sufficient to constitute a seizure . . . would have
been, and was in fact, issued.
Id. at 789 (emphasis added) (citations omitted).
The same is true in this case. Delgado simply cannot state a Fourth-Amendment
claim based upon Hajicek issuing the theft citation, even if he lacked probable cause to do
so, because the citation was not a seizure within the purview of the Fourth Amendment.
See id.; Martinez v. Carr, 479 F.3d 1292, 1297, 1299 (10th Cir. 2007) (collecting
decisions from the First, Third, Sixth, and Ninth Circuits, and noting that every court of
appeals to address [this] question[] has rejected Fourth Amendment claims like
4 As noted in DePiero, the idea that issuance of a summons compelling a court
appearance to answer criminal charges can be a seizure for Fourth-Amendment purposes was
espoused by Justice Ginsburg in her concurrence in Albright. Yet, [n]otwithstanding the
eminence of its sponsor, the view that an obligation to appear in court to face criminal charges
constitutes a Fourth Amendment seizure is not the law. No other Justice joined Justice
Ginsburgs opinion, and the question . . . remains unresolved by the Supreme Court. Nieves v.
McSweeney, 241 F.3d 46, 55-56 (1st Cir. 2001) (citations omitted). Notably, the Eighth Circuit
has expressed skepticism of Justice Ginsburgs concurrence in Albright. See Jefferson v. City of
Omaha Police Dept, 335 F.3d 804, 806 (8th Cir. 2003) (declining to address the issue but noting
that several of our sister circuits have been disinclined to expand fourth-amendment law in the
direction that Justice Ginsburg suggested); Technical Ordnance, Inc. v. United States, 244 F.3d
641, 651 (8th Cir. 2001) (noting that [t]his circuit has never held that an obligation to appear in
court amounts to a Fourth-Amendment seizure).
Delgados; We conclude that the issuance of a citation, even under threat of jail if not
accepted, does not rise to the level of a Fourth Amendment seizure.); Mantz v. Chain,
239 F. Supp. 2d 486, 503 (D.N.J. 2002) (the issuance of a summons requiring a criminal
defendant to appear in court on a specific date does not, by itself, amount to a seizure
under the Fourth Amendment).4
Delgados second theory fares no better. She alleges that she was falsely
arrested on the warrant that issued due to her failure to answer the theft citation which, in
turn, purportedly lacked probable cause. (See Mem. in Oppn at 21 (Plaintiff was
arrested on a warrant based on her failure to appear in court, with this failure to appear
having proximately derived from a citation which had been issued by . . . Hajicek in the
absence of probable cause.).) Yet, the only person named as a Defendant in Count 1 is
Hajicek, and there is no dispute that Hajicek was not involved in the issuance of the bench
warrant. Under these circumstances, Delgados claim must fail. See DePiero, 180 F.3d
at 789 (It was not until [the plaintiff] failed to appear for the hearing on the traffic
5 To the extent Delgado attempts to re-label her Fourth-Amendment claim as a maliciousprosecution
claim under state law, the claim fails for the same reason. See, e.g., Jenkins v.
County of Hennepin, Minn., Civ. No. 06-3625, 2007 WL 2287840, at *10 (D. Minn. Aug. 3,
2007) (Kyle, J.) (malicious prosecution requires initiation of criminal proceedings against the
accused party without probable cause) (emphasis added).
citation that an arrest warrant [was] issued. Officer Nicholl had no role in the issuance of
the bench warrant, so plaintiff cannot maintain a claim under 1983 against him for
such a seizure.) (emphasis added).
In any event, even if Delgado could maintain a Fourth-Amendment claim based on
the theft citation or her subsequent arrest, her claim would still falter because it is
predicated on a flawed assumption: that Hajicek lacked probable cause to cite her for
theft.5 Probable cause exists if the totality of facts based on reasonably trustworthy
information would justify a prudent person in believing the individual arrested had
committed .. . an offense. Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.
1996). [T]he probability, and not a prima facie showing, of criminal activity is the
standard of probable cause. Id.
Here, there is no dispute that, at the time it reported the matter to the police, East
Grand Station believed Delgado had rented the video in question and had not returned it
for over a year. There is also no dispute that East Grand Station sent a certified letter to
Delgado demanding the return of the video, but that the letter could not be delivered to
her because she no longer resided at her last-known address. Finally, there is also no
dispute that Hajicek had been made aware of the foregoing before he issued the theft
citation. From these facts alone, a reasonable police officer in Hajiceks shoes could have
6 It is also undisputed that Hajicek did not know, at the time he issued the citation, that
Rodger Delgado had actually rented the video. (Hajicek Dep. at 64.)
concluded that Delgado had taken the video intending to keep it, which is sufficient to
establish probable cause for the offense of theft under Minnesota law. See Minn. Stat.
609.52, subd. 2 (elements of crime of theft); United States v. Nguyen, Crim. No. 06-
192, 2006 WL 3486993, at *6-7 (D. Minn. Dec. 4, 2006) (Magnuson, J., adopting Report
& Recommendation of Nelson, M.J.) (noting that unlike statements from informants,
statements from victims are presumed credible and do not require corroboration in order
to establish probable cause).
Delgado argues that she advised Hajicek by telephone that she had not rented the
video and that Hajicek ignored that information. (See Mem. in Oppn at 23.) Yet, it is
undisputed that Delgado did not speak with Hajicek until after he had already issued the
theft citation. (Delgado Dep. at 24.) Hence, the information she allegedly provided to
him is irrelevant to whether Hajicek lacked probable cause at the time the citation was
Delgado further argues that Hajicek failed to undertake an appropriate
investigation before charging her. (See Mem. in Oppn at 23-26.) Yet, she has nowhere
specified what such an investigation was likely to uncover. She baldly alleges that, had
Hajicek placed a phone call to East Grand Station prior to issuing the theft citation, he
certainly would have learned that probable cause did not exist upon which to issue the
complaint/citation commencing a criminal case for theft (Mem. in Oppn at 26), but this
7 Notably, Delgado has not proffered any evidence (affidavits, deposition transcripts, etc.)
from East Grand Station employees indicating what they knew about who rented the video or
when they knew it.
8 Delgado asserts that [i]n Smithson v. Aldrich, [235 F.3d 1058 (8th Cir. 2000)], the
Eighth Circuit found that the police officers involved . . . had violated the plaintiffs Fourth
Amendment rights, because those officers had failed to interview all available witnesses before
making an arrest. (Mem. in Oppn at 26.) Delgado misstates the holding in Smithson. At no
point in that opinion did the Eighth Circuit hold that a Fourth-Amendment violation had been
established due to the officers failure to interview witnesses or review exculpatory evidence;
indeed, the court reached the opposite conclusion. See id. at 1062, 1064 (concluding that the
defendants were entitled to qualified immunity on the plaintiffs claims).
The Eighth Circuit has held that, when reviewing whether probable cause existed for an
arrest, a court should consider both the inculpatory and exculpatory evidence readily available to
the police officer. See Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). Yet, there is nothing
in the record indicating that Hajicek should have distrusted the information provided by East
Grand Station, see id. (noting that, in the absence of contradictory evidence, an officer may
make an arrest if a credible eyewitness claims to have seen the suspect commit the crime), nor
is there any evidence suggesting that an investigation would have uncovered that Delgado did
not rent the video.
It could be argued that after Delgado informed Hajicek that the matter had been cleared
up with East Grand Station, he was obliged to investigate and dismiss the charge if probable
cause for theft had been vitiated. There is at least arguable support for such a contention. See
Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986). Delgado, however, has asserted no such
argument is purely speculative and lacks any support in the record. Indeed, Delgado has
proffered no evidence (other than her own suppositions) indicating that, prior to Hajicek
charging her with theft, East Grand Station was aware she had not rented the video. On
the contrary, East Grand Station appears to have obtained that information only after
Delgado telephoned the store, which in turn took place only after she received notice of
the theft citation in the mail from her mother. (Delgado Dep. at 24-25.)7 Accordingly,
there exists no evidentiary basis from which to conclude that a telephone call to East
Grand Station would have yielded any information contrary to that Hajicek possessed at
the time he charged Delgado with theft.8
claim in her Complaint.
9 Delgado argues that because she did not receive the certified letter, Hajicek possessed
no evidence indicating that she had the specific intent to commit the crime of theft. (See Mem.
in Oppn at 7-8.) The Court fails to understand how not receiving the letter would have any
bearing on whether Delgado had the requisite mens rea, since the video was rented long before
the letter was sent.
Attempting to manufacture a fact dispute where none exists, Delgado argues that
Hajicek offered conflicting statements in his deposition as to whether he had probable
cause to charge Delgado with theft. (See Mem. in Oppn at 18.) The alleged conflict,
however, is created out of whole cloth by Delgado. She claims that Hajicek testified in
his deposition that he would not issue a citation without having in his file a delivered
certified mail demand letter from the video store, but then later changed his story and
admitted that he charged Delgado with theft knowing that she had not received East
Grand Stations certified letter. (Mem. in Oppn at 18, 24 (emphasis added).) At no point
in Hajiceks testimony, however, did he state that he would require proof of delivery of a
certified letter before he would issue a theft citation. Rather, he merely stated there
would be no citation issued until at least a certified letter demanding return of the video
was done by the business. (Hajicek Dep. at 42 (emphasis added).)9
For all of the foregoing reasons, the Court concludes as a matter of law that
Delgado cannot establish a Fourth-Amendment violation arising out of Hajiceks actions.
Accordingly, Hajicek is entitled to summary judgment on Count 1.
B. Count 2 fails because Delgado suffered, at most, de minimis injuries
In Count 2, Delgado alleges that Olson used excessive force in effecting her arrest.
10 Delgado also purportedly suffered severe emotional distress, but she claims that such
distress flowed from her arrest, not from Olsons use of force. (See Mem. in Oppn at 29
(discussing the emotional turmoil the plaintiff suffered as a result of the unwarranted arrest)
(emphasis added).) Accordingly, such distress is not an injury that may support her excessiveforce
Defendants correctly argue that this claim must be dismissed because Delgados alleged
injuries were too insignificant to support her claim.
It is beyond peradventure that the Fourth Amendment precludes the use of
excessive force by law-enforcement officers. E.g., Andrews v. Fuoss, 417 F.3d 813, 818
(8th Cir. 2005). Clearly, some degree of force is necessary to take a person into custody;
that force is used during an arrest, therefore, does not ipso facto establish a Fourth-
Amendment violation. Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir. 2003)
(Fourth Amendment jurisprudence has long recognized . . . the right to make an arrest
. . . necessarily carries with it the right to use some degree of physical coercion . . . to
effect it.). Rather, an excessive-force claim lies only when a plaintiff suffers an actual
injury resulting from force employed during an arrest. E.g., Hanig v. Lee, 415 F.3d 822,
824 (8th Cir. 2005). Simply put, not every push or shove by an officer violates the
Fourth Amendment, and a de minimis . . . injury is insufficient to support a finding of a
constitutional violation. Andrews, 417 F.3d at 818; Crumley, 324 F.3d at 1007.
In support of her excessive-force claim here, Delgado relies only on her assertion
that she was handcuffed too tightly and, as a result, she suffered pain and red marks on
her wrists. (See Mem. in Oppn at 29.)10 There is no dispute that Delgado was only in
handcuffs for a short period of time. (See Delgado Dep. at 44-48.) There is also no
dispute that (1) Delgado suffered no permanent injuries as a result of the handcuffing,
(2) the allegedly too-tight handcuffs caused no bruising, but only red lines on Delgados
wrists, and (3) Delgado never sought medical attention for her injuries. (See id. at 63-
65.) These facts are simply insufficient to support a Fourth-Amendment excessive-force
claim. See, e.g., Crumley, 324 F.3d at 1007-08.
Citing Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993), and McPherson v. Auger,
842 F. Supp. 25 (D. Me. 1994), Delgado makes the incredible argument that Defendants
have ignore[d] published decisional authorities by suggesting that Delgados injuries
were too insignificant to support her claim. (Mem. in Oppn at 29.) Yet it is Delgado
who has ignored the relevant case law, in particular several binding decisions of the
Eighth Circuit. For example, in Crumley, the plaintiff brought an excessive-force claim
as a result of too-tight handcuffs that had caused her wrists to bleed. This Court
concluded that the plaintiffs excessive-force claim failed, and the Eighth Circuit
affirmed, holding that for the application of handcuffs to amount to excessive force there
must be something beyond allegations of minor injuries. 324 F.3d at 1008 (emphasis
added). The Eighth Circuit has reached that same conclusion on several other occasions.
See Hanig, 415 F.3d at 824; Foster v. Metro. Airports Commn, 914 F.2d 1076, 1082 (8th
Cir. 1990) (allegation of nerve damage from being handcuffed too tightly insufficient
where plaintiff proffered no medical records indicating any long-term injury; We do not
believe [that] allegations of pain as a result of being handcuffed, without some evidence
11 Although Delgado correctly notes that some courts have reached a contrary result, the
Eighth Circuit certainly is not alone in reaching this conclusion. See, e.g., Freeman v. Gore, 483
F.3d 404, 417 (5th Cir. 2007) (plaintiff who suffered bruising on hands and arms failed to state
excessive-force claim because handcuffing too tightly, without more, does not amount to
excessive force); Rodriguez v. Farrell, 280 F.3d 1341, 1352 (11th Cir. 2002) (Painful
handcuffing, without more, is not excessive force in cases where the resulting injuries are
of more permanent injury, are sufficient to support [a] claim of excessive force.).11 It is
disingenuous for Delgado to assail Defendants argument when it is she who has relied on
case law contrary to that emanating from our Court of Appeals.
For the reasons set forth above, the excessive-force claim fails as a matter of law
and must be dismissed.
Based on the foregoing, and all the files, records, and proceedings herein, it is
1. Plaintiffs Motion for Leave to Amend (Doc. No. 31) is GRANTED; and
2. Defendants Motion for Summary Judgment (Doc. No. 18) is GRANTED
and Plaintiffs Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.
Dated: May 12, 2008 s/Richard H. Kyle
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.