                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 3 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RUDY TENORIO, as next friend of
    Priscilla Tenorio,

                Plaintiff-Appellant,
                                                         No. 04-2103
    v.                                         (D.C. No. CIV-02-545 MV/ACT)
                                                          (D. N.M.)
    CITY OF HOBBS; CHARLES
    CUNNINGHAM; DONALD
    JACKSON; COREY HELTON;
    JAMES TORRES; CARLOS
    HERNANDEZ; HOBBS POLICE
    OFFICERS, John Doe,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       In this 42 U.S.C. § 1983 action, plaintiff-appellant Rudy Tenorio, as next

friend of his minor daughter, Priscilla Tenorio, appeals the district court’s entry

of summary judgment in favor of defendants-appellants on his claim that

defendants-appellants violated Priscilla Tenorio’s Fourth and Fourteenth

Amendment rights when she was briefly detained for investigative purposes on

January 28, 2001. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

       Defendants Charles Cunningham, Donald Jackson, Corey Helton, James

Torres, and Carlos Hernandez (collectively, the Officers) are police officers

employed by the City of Hobbs, New Mexico. Priscilla Tenorio suffers from

Down’s Syndrome, and she was thirteen years old at the time of the events giving

rise to this case. As summarized by the district court, the undisputed background

facts pertaining to plaintiff’s claims, none of which are being challenged by

plaintiff in this appeal, are as follows:

              On January 28, 2001, [the Officers] received a report from
       dispatch that an armed woman wearing a black coat, white shirt and
       grey pants was walking down Scharbauer Street, knocking on doors
       in the neighborhood and pointing a gun at each door while waiting
       for someone to answer. The report from dispatch was based on a tip
       from Virginia Teeter who called 911 from her home at 1231 West
       Scharbauer Street. Ms. Teeter informed dispatch that there was a
       woman standing at the front door of the house across the street from
       her with a gun in her hand pointed at the door. She described the
       woman as Spanish, wearing a black coat, white t-shirt and grey pants.

                                            -2-
While she was on the telephone with dispatch, Ms. Teeter continued
to observe the suspect and reported that the suspect stepped down
from the porch on the sidewalk and began walking east. When asked
by dispatch whether she could see the weapon in the suspect’s hand,
Ms. Teeter responded yes. She also stated as follows: “It looks like
uh, all I can tell you, it looks like a gun of some kind. I don’t know
whether it’s a toy gun, a real gun, or what it is.” (Transcript of 911
Call at 2). When dispatch then asked her if it was a handgun, Ms.
Teeter replied yes.

       The Officers all responded to the call from dispatch. When
they arrived at the 2000 block of Scharbauer Street, they observed
the suspect, later identified as Priscilla Tenorio, standing on the
sidewalk wearing a black coat, white shirt and grey pants. The
officers could not see her hands or whether she was holding a gun.
They parked their patrol units at a distance from Ms. Tenorio, exited
their vehicles, stood behind their car doors and drew their weapons.
Officer Helton spoke to Ms. Tenorio using the loud speaker from his
vehicle, instructing her to raise her hands. When Ms. Tenorio did not
comply, Officer Helton asked her whether she had a gun. She pulled
a gun from her coat pocket and dropped it at her feet. Officer Helton
then instructed Ms. Tenorio to walk towards his vehicle and away
from the gun. When Ms. Tenorio again did not comply, Officer
Cunningham and Officer Jackson approached her from behind and
Officer Jackson handcuffed her. According to Plaintiff, the Officers
realized early on during the encounter that Ms. Tenorio suffered from
a mental handicap. Plaintiff also alleges that Ms. Tenorio was
sobbing during the encounter.

       Once Ms. Tenorio was handcuffed, the Officers realized that
the gun was in fact a toy. The Officers patted her down to determine
if she had any other weapons. Once the pat-down confirmed that she
did not have any other weapons, the Officers removed the handcuffs
and returned Ms. Tenorio to the custody of her parents. According to
Plaintiff, Ms. Tenorio’s parents attempted to intervene on their
daughter’s behalf, explaining that Ms. Tenorio suffers from Down
Syndrome, that she did not have a real gun and that the handcuffs
were hurting her. Ms. Tenorio was in handcuffs for approximately
one and one-half minutes, although Plaintiff claims that it seemed to


                                  -3-
      Ms. Tenorio that she was in handcuffs for five minutes. The entire
      encounter lasted four and one-half minutes.

Aplt. App. at 153-55.   1



      Plaintiff subsequently filed a complaint against the Officers and the City of

Hobbs under 42 U.S.C. § 1983, claiming that the Officers unlawfully detained

Ms. Tenorio and used excessive force in violation of her Fourth and Fourteenth

Amendment rights. Plaintiff also asserted state-law claims for false arrest and

false imprisonment.

      Defendants moved for summary judgment on all of plaintiff’s claims, and

the district court granted the motion. First, the court concluded that the Officers

had conducted a reasonable investigative detention for purposes of the Fourth

Amendment because: (1) at the inception of their encounter with Ms. Tenorio,

“the Officers had an objectively reasonable basis to suspect that Ms. Tenorio was

engaged in criminal activity,” Aplt. App. at 157; and (2) “[t]he Officers’ actions


1
       In his opening brief, plaintiff argues that the district court mischaracterized
the facts when it stated that “the officers had received information of an armed
woman . . . walking down Scharbauer Street, knocking on doors in the
neighborhood and pointing a gun at each door.” Aplt. Br. at 9. According to
plaintiff, “[t]his is not what the police were advised. The report was of a
woman . . . knocking on one door with something that might be a gun in her
hand.” Id. Given the circumstances of this case, this is not a material distinction,
because we conclude that the Officers had reasonable suspicion to conduct the
subject investigative detention even if the information they received indicated that
Ms. Tenorio had only knocked on one door. We also note that the neighborhood
witness, Virginia Teeter, specifically informed the 911 operator that the object
Ms. Tenorio was holding “look[ed] like a gun of some kind.” Aplt. App. at 105.

                                         -4-
during the detention, which included drawing their weapons, handcuffing

Ms. Tenorio and conducting a pat-down search, were reasonable under the

circumstances,” id. at 158. Second, the court concluded that plaintiff’s

allegations were insufficient to set forth an excessive force claim.     Id. at 160.

Third, because plaintiff had failed to establish that the Officers’ conduct violated

a constitutional right, the court also concluded that: (1) it was not necessary to

conduct any further inquiry concerning the Officers’ affirmative defense of

qualified immunity; and (2) there was insufficient evidence to support a claim for

municipal liability against the City of Hobbs.      Id. at 161-62. Finally, the court

found “no compelling reason to exercise supplemental jurisdiction over Plaintiff’s

state law claims,” and the court dismissed the state-law claims without prejudice.      2



Id. at 162.

       We review the grant of summary judgment de novo, applying the

same standard under Fed. R. Civ. P. 56(c) as the district court.       Adler v. Wal-Mart

Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Under Rule 56(c), summary

judgment is proper if “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).


2
       We note that the judgment entered by the district court dismissed the entire
“action . . . WITH PREJUDICE .” Aplt. App. at 165. Plaintiff has not raised
this discrepancy as an issue in this appeal, however, and we therefore assume that
plaintiff is not seeking to pursue Ms. Tenorio’s state-law claims in any other
forum.

                                             -5-
“In applying this standard, we view the factual record and draw all reasonable

inferences therefrom most favorably to the nonmovant.”       Adler , 144 F.3d at 670.

         Having carefully reviewed the record and the pertinent legal authorities, we

agree with the district court that defendants were entitled to summary judgment

on all of plaintiff’s claims, and we see no reason to repeat the thorough and well-

reasoned analysis set forth in the district court’s memorandum opinion and order.

See Aplt. App. at 157-62. Accordingly, we affirm the entry of summary judgment

in favor of defendants for substantially the same reasons set forth by the district

court.

         One final note is necessary, however. In this appeal, the sole error alleged

by plaintiff is his claim that the district court’s “opinion and order ignores

significant factors of Priscilla Tenorio’s appearance as a person afflicted with

Down’s Syndrome and her young age.” Aplt. Br. at 6. According to

plaintiff, Ms. Tenorio’s “appearance is a piece of evidence, a fact,” and “[i]t is a

genuine issue of material fact, not properly factored into the District Court’s

decision.” Id. at 11. We disagree.

         In its memorandum opinion and order, the district court specifically

acknowledged plaintiff’s allegation that the Officers were aware of Ms. Tenorio’s

mental handicap before they placed her in handcuffs.     See Aplt. App. at 154.

Moreover, the court accepted the allegation as true, but concluded that it was not


                                           -6-
a genuine issue of material fact that was capable of defeating defendants’ motion

for summary judgment. As the court explained,

      [g]iven Ms. Tenorio’s failure to comply with instructions in
      combination with the fact that she produced a gun from her pocket, it
      was not unreasonable for Officer Jackson to believe that securing the
      scene warranted placing Ms. Tenorio in handcuffs. This conclusion
      is no less valid even if, as plaintiff alleges, Ms. Tenorio’s mental
      handicap was either apparent to the Officers or made known to them
      by her parents.

Id. at 159.

      We agree with the district court’s analysis. We also agree with defendants

that “common sense dictates that a suspect who appears to have a mental

handicap, is reportedly armed, and is not following verbal commands should be

treated with a heightened degree of caution.” Aplee. Br. at 10. In addition, it is

important to emphasize that the undisputed facts show that Ms. Tenorio was only

handcuffed for one and one-half minutes and only detained for a total of four and

one-half minutes. In light of these undisputed facts, we conclude, as a matter of

law, that the Officers acted reasonably, regardless of Ms. Tenorio’s age and

physical appearance.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge

                                         -7-
