UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-50192
SUMMARY CALENDAR
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DOMINGO PEREZ
Plaintiff - Appellant
v.
THOMAS ALAN DICKERSON, Etc; ET AL
Defendants
JOHN MASPERO, Sheriff, In His Official Capacity
Defendant - Appellee
______________________________________________________________________________
On Appeal from the United States District Court for the
Western District of Texas, Austin Division
(A-00-CV-438-AA)
______________________________________________________________________________
January 6, 2003
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal we review a district court's decision to grant summary judgement in favor of
Defendants, Thomas Alan Dickerson and Sheriff John Maspero, in a civil rights suit brought by
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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Plaintiff, Domingo Perez, pursuant to 42 U.S.C § 1983. For the following reasons, we affirm the
district court’s judgment.
I.
On February 14, 1999, Plaintiff Domingo Perez (“Perez”) was arrested for driving while
intoxicated. He was taken to the Williamson County Jail in Georgetown, Texas for booking and
processing. After arriving at the jail, Perez was instructed by Defendant Thomas Dickerson, a
Williamson County Corrections Officer, to sit on a bench. Perez, for some unknown reason, failed
to follow Officer Dickerson’s instructions.
Apparently concerned that Perez’s refusal to cooperate might lead to an incident in front
of several other arrestees, Officer Dickerson forcibly led Perez to an elevator, where Dickerson
pushed and held Perez against the elevator doors with such force that, when the elevator arrived,
the doors would not open.
Dickerson eventually released his grip on Perez and the elevator doors opened, resulting in
Perez falling inside the elevator and sustaining injuries to his face and shoulders. Dickerson then
pinned Perez into the corner of the elevator with his knee.
Officer Dickerson was then instructed by one of his superiors –who had arrived in
response to Dickerson’s radio call for assistance– to cease his use of force. Dickerson was
subsequently suspended, pending an investigation of the incident, and later resigned in order to
avoid being terminated. Criminal charges were filed against Dickerson by the Williamson County
Attorney, and as a result of a plea agreement, Officer Dickerson was placed on deferred
adjudication, which he successfully completed.
Domingo Perez filed a Section 1983 civil rights complaint in federal district court against
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Dickerson, in his individual and official capacities, and Williamson County Sheriff Ed Richards, in
his official capacity.2 The parties consented to proceed before, and the case was assigned to, a
magistrate judge.
In his complaint, Perez alleged, inter alia, that Dickerson used unnecessary force by
striking, pushing and assaulting the Plaintiff. He also asserted that Maspero failed to adequately
train the county’s jailers, and that, as Sheriff, Maspero had “actual knowledge” of the routine
practice of jailers committing assaults against inmates. Perez also alleged that the county had
established policies and procedures which encouraged and rewarded assaults against inmates.
Both Maspero and Dickerson moved for summary judgment. The magistrate judge, upon
finding that Perez failed to show that Williamson County had a policy of encouraging or tolerating
the use of excessive force against inmates, granted the summary judgement motions for both
defendants in their official capacities, but denied Dickerson’s individual capacity motion. The
parties later stipulated to the dismissal of the individual capacity suit, and final judgment was
entered on January 16, 2002. Perez then filed timely notice of this appeal.
II.
On appeal, Perez argues that the magistrate judge erred in granting summary judgement
for Dickerson and Maspero. His arguments essentially amount to the contention that there are
disputed fact issues regarding whether Williamson County had a policy of encouraging and
tolerating the use of excessive force by jailers against inmates.
We review a grant of summary judgment de novo, applying the same standard as the
2
John Maspero was substituted for Richards as his successor when Richards resigned as
Sheriff.
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district court. See Terrebonne Parish School Board v. Columbia Gulf Transmission Co., 290
F.3d 303, 310 (5th Cir. 2002). Summary judgement is appropriate only if there is no genuine issue
of material fact and the moving party is entitled to judgement as a matter of law. FED. R. CIV. P.
56(c).
The party moving for summary judgement has the burden of establishing the absence of a
genuine issue of material fact. Hibernia Nat’l Bank v. Administracion Cent. S.A., 776 F.2d 1277,
1279 (5th Cir. 1985). If the moving party meets its initial burden of showing that there is no
genuine issue of material fact, the burden shifts to the nonmoving party to produce evidence
establishing a factual issue. See Evans v. Houston, 246 F.3d 344, 348 (5th Cir. 2001). Although
we draw all reasonable inferences in favor of the nonmoving party, conclusory allegations
unsupported by concrete and particular facts are insufficient to defeat a motion for summary
judgment. See Terrebonne Parish School Board, 290 F.3d at 310.
To establish municipal liability when a plaintiff is not relying upon an explicit, stated
policy, the plaintiff must demonstrate a persistent pattern of conduct. See Richardson v. Oldham,
12 F.3d 1373, 1381-82 (5th Cir. 1994)(“a municipal policy may be established by a persistent
pattern of conduct as well as by a formal legal declaration”). Liability exists when a prisoner
demonstrates a “persistent, widespread practice of city officials or employees, which, although not
authorized by officially adopted and promulgated policy, is so common and well settled as to
constitute a custom that fairly represents municipal policy.” Webster v. City of Houston, 735 F.2d
838, 841 (5th Cir. 1984)(en banc). Isolated violations are not the persistent, often repeated,
constant violations that constitute custom and policy. Bennett v. City of Slidell, 728 F.2d 762,
768 n.3 (5th Cir. 1984)(en banc)(citing Barry v. McLemore, 670 F.2d 30, 32 (5th Cir. 1982)).
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In support of his arguments on appeal, Perez disputes the magistrate judge’s finding that a
superior officer instructed Dickerson to stop his use of force against the appellant. Perez infers the
existence of a policy condoning the use of force from Dickerson’s testimony indicating that his
actions were consistent with the training he received from Williamson County. To further support
his theory, Perez submits that “deposed correctional officers all acknowledged knowing of other
correctional officers who had been terminated for using excessive force against inmates.”
Perez’s contention that Williamson County condoned and encouraged the use of excessive
force is conclusory and is not supported by the record. As evidence of the “persistent pattern of
conduct,” Perez adduces eight incidents involving “personnel problems” among Williamson
County correctional officers. Of the eight incidents, however, only one involves a jailer’s use of
excessive force against an inmate. In that case, as in the case at hand, the officer was subjected to
an internal affairs investigation and ultimately lost his job.
Contrary to the Appellant’s assertions, the record suggests that Williamson County has
discouraged the type of behavior at issue by initiating disciplinary proceedings, and in the case of
Dickerson, filing criminal charges against wrongdoers. Rather than a pattern of behavior
constituting a custom or practice, the excessive force employed against Perez by Dickerson
represents an isolated event. See Bennett, 728 F.2d at 768 n.3. Furthermore, although the
behavior at issue was wrongful, it was treated as such by Williamson County officials.
After reviewing the record and briefs, we hold that Perez failed to meet his burden to
produce evidence or designate specific facts showing the existence of a genuine issue for trial.
Accordingly, we find that the magistrate judge did not err in granting summary judgement for the
defendants.
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III.
For the foregoing reasons, the judgement of the district court is AFFIRMED.
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