UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THE ESTATE OF MARIA PEROVICH,

VICTOR GOJCAJ,

Plaintiffs,

-vs- Case No: 2:09-CV-12192 

STERLING HEIGHTS POLICE OFFICER Hon. Patrick Duggan 

ANTOINETTE FETT,

STERLING HEIGHTS POLICE SERGEANT

DAVID CATTANEO, STERLING HEIGHTS POLICE 

OFFICER AARON BURGESS AND CLINTON TOWNSHIP 

POLICE DETECTIVE LEO MELISE,

Defendants.

________________________________________________________________________

PATRICK J. Mc QUEENEY (P45797) MARC D. KASZUBSKI (P60333) 

Attorney for Plaintiff Attorney for Defendants

33830 Harper Avenue Cattaneo, Burgess and Fett

Clinton Township, Michigan 48035 Sterling Town Center

(586) 774-6363 12900 Hall Road/Ste. 350

patrickjmcqueeney@yahoo.com Sterling Heights, Michigan 48313

(586) 726-1000

________________________________________________________________________

PLAINTIFF’S RESPONSE TO DEFENDANTS FETT, CATTANEO AND & BURGESS’ 

MOTION FOR SUMMARY JUDGMENT

Defendants in this 42 USC 1983 lawsuit with supplemental state law claims arising from 

the heinous treatment of an unarmed, elderly disable woman seeks summary judgment pursuant 

to FRCP 56. For the reasons fully set forth in the accompanying Response Brief, depositions, 

documentary and other exhibits, Defendants’ motion must be denied and the case should proceed 

to final settlement conference of to a jury trial before the constitutional fact finder.

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 1 of 28
Respectfully submitted,

/s/Patrick J. McQueeney___________

Patrick J. McQueeney (P45797)

33830 Harper Avenue

Clinton Township, Michigan 48035

(586) 774-6363

patrickjmcqueeney@yahoo.com

Dated: September 13, 2010

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 2 of 28
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THE ESTATE OF MARIA PEROVICH,

VICTOR GOJCAJ,

Plaintiffs,

-vs- Case No: 2:09-CV-12192 

STERLING HEIGHTS POLICE OFFICER Hon. Patrick Duggan 

ANTOINETTE FETT,

STERLING HEIGHTS POLICE SERGEANT

DAVID CATTANEO, STERLING HEIGHTS POLICE 

OFFICER AARON BURGESS AND CLINTON TOWNSHIP 

POLICE DETECTIVE LEO MELISE,

Defendants.

________________________________________________________________________

PATRICK J. Mc QUEENEY (P45797) MARC D. KASZUBSKI (P60333) 

Attorney for Plaintiff Attorney for Defendants

33830 Harper Avenue Cattaneo, Burgess and Fett

Clinton Township, Michigan 48035 Sterling Town Center

(586) 774-6363 12900 Hall Road/Ste. 350

patrickjmcqueeney@yahoo.com Sterling Heights, Michigan 48313

(586) 726-1000

________________________________________________________________________

BRIEF IN SUPPORT PLAINTIFF’S RESPONSE TO DEFENDANTS FETT, 

CATTANEO AND & BURGESS’ MOTION FOR SUMMARY JUDGMENT

______________________________________________________________________________

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 3 of 28
TABLE OF CONTENTS

INDEX OF AUTHORITIES ii

STATEMENT OF QUESTIONS PRESENTED iv

STATEMENT OF FACTS 1

ARGUMENTS

I. DEFENDANTS STERLING HEIGHTS POLICE OFFICERS ARE NOT 

ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO 

PLAINTIFF’S FEDERAL AND STATE LAW CLAIMS. 13

A. Law Applicable to Qualified Immunity Defense. 13 

B. Defendants misinterpret Plaintiff’s Complaint suggesting that she has 

made a 42 USC 1983 claim for false arrest for the offense of 

Attempted Resisting and Obstructing Arrest. 13

C. Defendants are not entitled to Qualified Immunity on Plaintiff’s 

Unlawful Entry Claim 14

D. Plaintiff’s rights under the fourth Amendment were violated by 

Defendant Sterling Heights Police Officers and therefore, Defendants’ 

Motion for Summary Judgment as it pertains to Plaintiff’s Excessive 

Force Claim Must Fail. 17 

CONCLUSION 21

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ii

INDEX OF AUTHORITIES

CASE LAW:

.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 

(1986)................................................................................................13

Dominque v Telb, 831 F2d 673, 676 (6th Cir. 1987)....................................18

Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008)...............................13

Fox v DeSoto 489 F.3d 227, 236 (6th Cir. 2007).......................................18

Gardenhisr v Schubert, 205 F3d 303, 315 (6th Cir. 2000)..........................14

Graham v. Connor, 490 U.S. 386, 395-96, 109 S. Ct. 1865, 

104 L. Ed. 2d 443 (1989)................................................................18

 

Lockett v. Suardini, 526 F.3d. 866, 872 (6th Cir. 2008).........................13, 14, 21

 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 

89 L. Ed. 2d 538 (1986)..........................................................................12

People v Roger Dillard, 115 Mich App 640, (1982).....................................15

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 

150 L. Ed. 2d 272 (2001)........................................................................13

Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)...............18

STATUTE:

42 U.S.C. § 1983. 18

CONSTITUTIONS:

Fourth Amendment 21

COURT RULE

F. R. C. P. 56 12

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 5 of 28
iii

STATEMENT OF QUESTIONS PRESENTED

1. WHETHER DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY

BASED UPON FACTS AND CIRCUMSTANCES WHICH COULD LEAD 

JURORS TO CONCLUDE THAT THE ACTIONS OF DEFENDANTS HEREIN

WERE NOT OBJECTIVELY REASONABLE?

Defendants Answer: Yes.

Plaintiffs’ Answer: No.

2. WHETHER PLAINTIFF’S STATE LAW CLAIMS SHOULD BE DISMISSED AS 

A MATTER OF LAW?

Defendants Answer: Yes.

Plaintiffs’ Answer: No.

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1

I. COUNTER-STATEMENT OF FACTS

A. Introduction

On October 30, 2007, Mr. Victor Gojcaj and the late, Maria Perovich, were residing 

peacefully in Ms. Perovich’s residence in Sterling Heights, Michigan. Leo Melise, a Clinton 

Township Police Detective, investigating a misdemeanor complaint of defrauding an 

innkeeper, an alleged “dine and dash” went to the Sterling Heights residence to speak to 

Plaintiff Gojcaj. Melise pounded at the door for an extended period of time, prompting Ms. 

Perovich to call the Sterling Heights Police Department. Sterling Heights officers responded 

to the scene and Ms. Perovich came to the front door to speak to them. 

Melise insisted that Gojcaj, Perovich’s son, come to the door. Perovich inquired as 

to why he wanted to speak to her son and when she did not produce her son, Melise 

threatened to take her vehicle. Perovich became frustrated when Melise threatened to take 

her vehicle and when Melise unnecessarily caused Perovich further agitation by rhetorically 

stating: “what are you going to do about it,” Ms. Perovich’s stated prompted that she would 

get her gun and remove him from the premises. 

Thereafter, Cattaneo, and the other law enforcement officers forcefully entered the 

residence without a warrant and Perovich was brought to the floor, and she is heard 

screaming on the videotape. The events of October 30, 2007, were captured on a video 

surveillance tape, a copy is attached hereto as exhibit A, which gives rise to this action.

Following Ms. Perovich being taken to the floor, she was forcefully being handcuffed 

by Defendant Cattaneo and Officer Fett. Fett was observed to have her knee on Ms. 

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2

Perovich’s head and Sergeant Cattaneo had his knee in Ms. Perovich’s back. Ms. Perovich 

was screaming during the whole ordeal and eventually was transported to the hospital when 

Gojcaj insisted that she be brought to the hospital. The medical records demonstrate that Ms. 

Perovich had an abnormal ECG on October 30, 2007 and that she had an inferior infarction.

Ms. Perovich suffered the abuse of Defendant’s Cattaneo and Officer Fett, who 

claimed that Ms. Perovich was resisting arrest. Ms. Perovich, an elderly, obese, disabled 

woman could not have resisted arrest. Nevertheless, she was only charged with that offense 

as a means to protect the officers from scrutiny for their inappropriate behavior.

Defendants have testified that Perovich assaulted Cattaneo, but the videotape does not 

demonstrate an assault occurred. Further, that allegation defies common sense as Perovich 

called the police and why would she push a police officer in that instance. Perovich an 

elderly disabled woman did not push Cattaneo and did not plead guilty to any such offense. 

B. Counter-Statement of Facts

On October 30, 2007 at approximately 9:45AM, Clinton Township Detective Leo Melise, 

appeared at Maria Perovich’s home, in Sterling Heights. Melise was there to investigate Ms. 

Perovich’s son, Victor Gojcaj, not paying his restaurant bill from the evening before. 

Gojcaj had been a patron at the P.F. Changs Restaurant on October 29, 2007 and believed 

that his friend, Paul Lutori was going to pay his dinner tab. (Exhibit B, 15). Gojcaj told the 

waiter that he had forgotten his wallet, but did not explain to the waiter that Lutori, was going to 

pay the tab, as he was in a hurry to leave the restaurant, because he had observed the “Notos” of 

which he has been a past victim of physical abuse at the hands of Jerry Noto. (Exhibit B, 16-19).

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 8 of 28
3

At the time that Melise was at the residence and pounding on the door, Gojcaj was 

watching on a closed circuit television in his bedroom as to what was transpiring at the front 

door. (Exhibit B, 20). Gojcaj would have come to the front door and talked to Melise, if Melise 

had advised his mother that he was there to inquire as to the nonpayment of a dinner tab. 

(Exhibit B, 22). Melise was pounding at the front door which is why the late Maria Perovich 

called the Sterling Heights Police Department. (Exhibit B, 25). Melise had been in street 

clothes and Perovich did not believe Melise was a police officer. Id. Ms. Perovich called the 

Sterling Heights Police Department and they came right away. Id. 

Gojcaj overheard his mother state, after becoming agitated, that she was going to get her 

gun and chase Melise off her premises. (Exhibit B, 25-26). Perovich did not threaten to shoot 

any of the officers, as has been repeatedly suggested. Indeed, the videotape demonstrates that 

the police officers had no fear of any such “threat”. (Exhibit A).

Gojcaj came out of his bedroom, when he heard his mother screaming and she was on 

the floor when he came out of his bedroom. (Exhibit B, 28). Mr. Gojcaj observed Defendant 

Cattaneo with his knee jabbed into his mother’s back and that she was not resisting Detective 

Cattaneo from handcuffing her. (Exhibit B, 29 & Exhibit C). Mr. Gojcaj did not observe his 

mother struggling with the police officers and Ms. Perovich as a weak disabled woman could not 

prevent the officers from doing anything to her. Id. 

Gojcaj told the officers she had a back injury, and to get off of her and call an ambulance. 

(Exhibit B, 29-30). Mr. Gojcaj testified that the officers were on top of her like she was an 

animal. Id.

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 9 of 28
4

Ms. Perovich was transported to Troy Beaumont. (Exhibit B, 30). Mr. Gojcaj testified 

that the Doctor told him that the ECG report showed that his mother had a heart attack. Id. 

Perovich pled no contest to the offense of attempted resisting and obstructing arrest, 

which was taken under advisement and later dismissed. (Exhibit B, 44). \The case against 

Perovich was ultimately dismissed when she completed six month of non reporting probation.

The videotape attached as exhibit A was initially seized by the Sterling Heights Police 

officers at the scene. Thereafter, Mr. Gojcaj, retrieved the tape from the police department, but 

then was advised to return the same following a phone call he received from the Sterling Heights 

Police Department. (Exhibit B, 96). 

At the time of the incident, there were three vehicles at Ms. Perovich’s residence and 

each was registered in Perovich’s name, as they were not owned by Gojcaj, (Exhibit B, 107).

Detective Melise woke up Mr. Gojcaj, when he was pounding at the front door for 

approximately a half hour. (Exhibit B, 125). Perovich did not believe that Melise was a police 

officer because he was not in uniform and was not driving a marked vehicle. (Exhibit B, 126). 

Ms. Gojcaj’s mother did not want her son to go to the front door, as she believed that the people 

at the door wanted to cause him trouble. (Exhibit B, 127). 

Mr. Gojcaj testified that his mother said she was going to get her gun, because she had 

been influenced by the verbal abuse. (Exhibit B, 132). Ms. Perovich, however, did not have a 

gun and never has owned a gun. Id. Mr. Gojcaj did not witness how his mother ended up on the 

floor of the house. (Exhibit B, 135). The videotape, however, clearly demonstrates that Ms. 

Perovich is screaming only moments after the officers entered her residence without a warrant. 

Further, Mr. Gojcaj was advised by his mother that the police officers had forced her to the floor. 

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 10 of 28
5

(Exhibit B, 141). Mr. Gojcaj estimates that it was approximately a second when the police 

entered the residence and he came out and saw his mother on the floor. (Exhibit B, 145). Ms. 

Gojcaj told her son while they were at the hospital that she was forced to the floor. Id. 

Mr. Gojcaj reviewed the videotape and heard Detective Melise say that he was going to 

tow Ms. Perovich’s vehicle. (Exhibit B, 147). Perovich has used a cane/walker for 

approximately 20 years. (Exhibit B, 147-48). Mr. Gojcaj was advised by his mother at the 

hospital that her back and her head were hurt. (Exhibit B, 148). 

Antoinette Fett was one of the officers dispatched to the residence. Fett met Clinton 

Township Police Detective Leo Melise, who was dressed in street clothes. Fett and the other 

officers, who were responding to a call from Ms. Perovich were actually there to assist Melise. 

(Exhibit D, 17). However, Fett also claimed that the Sterling Heights Police Department was 

standing by for both parties. (Exhibit D, 19). 

Perovich opened the “regular” door and Fett could not see that Perovich was using a cane 

or walker, however she did observe a cane upon her entry into Perovich’s residence. (Exhibit D, 

22). Fett observed Ms. Perovich with the cane. Id. Fett observed Ms. Perovich open the screen 

door and saw that Ms. Perovich had extended her hands on the porch. (Exhibit D, 25). Fett 

believed that Ms. Perovich was agitated and appeared to be visibly upset. Id. 

Fett believed that Perovich was upset because Detective Melise wanted to speak to 

Perovich’ son, Victor. (Exhibit D, 26). Fett did not have any knowledge whether Victor was 

home, but she was advised that a truck which was registered to Perovich was in the driveway and 

it was the same truck used in the alleged “dine and dash” at the restaurant. (Exhibit D, 26,27). 

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 11 of 28
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Ms. Perovich told Melise that he should make an appointment to speak to her son. The Sterling 

Heights Officers did not advise Melise to contact Victor at a later date. (Exhibit D, 27, 28). 

Fett claims in her report that Perovich stated I am going to get my gun and shoot you. 

(Exhibit D, 43). Fett believes the statement made by Perovich was directed to all of the police

officers. Fett then acknowledged that in her answers to interrogatories, particularly question 

number nine, that there was no reference in the answer that Perovich was going to shoot 

someone. (Exhibit D, 48, 49). While reviewing a videotape at her deposition, Fett testified that 

she heard Perovich state “I am going to get my gun” and that Perovich was ranting and raving 

and that it was hard to hear all the content. (Exhibit D, 57). Fett heard Perovich claim that she 

was going to get her “freakin” gun, but did not see Perovich push Cattaneo on the video. 

(Exhibit D, 58). Fett believed that an elderly woman with a cane would be able to spring back 

into the home and then return to the front door and shoot the officers. (Exhibit D, 64). Fett then 

testified that as police officers they were going into a known danger, when she heard a credible 

threat and that officers gone into known dangers every day. (Exhibit D, 65). 

The videotape of the incident was seized as evidence of an assault, however, she also 

testified that there was no assault on the videotape. (Exhibit D, 70, 71). Fett did not see the 

storm door to Ms. Perovich’s residence close and she did not see Sergeant Cattaneo open the 

screen door. (Exhibit D, 78). Fett claimed that Ms. Perovich dropped dead weight into a foyer 

area of the home and that she had a cane with her, as the officers entered the residence. (Exhibit 

D, 84). Perovich landed on her left arm after she fell dead weight on the floor. (Exhibit D, 85). 

 Fett handcuffed Perovich’s right arm, while Cattaneo was holding her wrist and Ms. 

Perovich is screaming the entire time while flailing around. (Exhibit D, 88) Perovich did not 

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 12 of 28
7

claim any other injuries other than to hear back, but Fett did notice bruising to Perovich’s arm, 

when viewing a photograph during her deposition. (Exhibit D, 91). Fett observed a bruise on 

Perovich’s arm and discoloration of Perovich’s left hand when presented photographs at her 

deposition. (Exhibit D, 93). The discoloration on Perovich’s hand could possibly be a bruise. 

(Exhibit D, 94). Ms. Perovich was breathing very heavily due to her agitated state and that is 

why the Sterling Heights Officers called for medical personnel. (Exhibit D, 95). Fett observed 

Victor running around a corner from a hallway and asking his mother if she was okay, while she 

was on the floor with Fett and Cattaneo. (Exhibit D, 96). 

Leo Melise observed the elderly woman to have opened the screen door and threatened 

that she was going to get a gun and shoot the officers. (Exhibit E, 27). Melise and the other 

officers then looked at each other in amazement. Id. Perovich never got a gun and in fact she 

never did anything else in terms of an aggressive act when said that she was going to get her gun. 

Melise estimates that it might have been a minute and a half or less when the officers entered the 

residence after the woman said she was going to get her gun. (Exhibit E, 29).

Melise and the other three officers entered the Perovich residence without a search or 

arrest warrant and they were entering the residence after they were allegedly threatened for their 

safety. (Exhibit E, 30). Melise admitted the officers could have left and there was nothing 

preventing them from leaving. (Exhibit E, 31). Melise testified that the reason why the police 

entered was the threat. Id. 

The officers did not have their firearms drawn when they entered the residence. (Exhibit 

E, 34). Melise observed that the woman was on the ground and she was on her side yelling at 

the officers. Id. Gojcaj come around in a split second, while his mother was on the floor. 

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 13 of 28
8

(Exhibit E, 35). Melise stood there when Gojcaj came out from around a wall and a Sterling 

Heights officer then pulled out his taser and said get down, at which time Gojcaj complied. Id. 

The elderly woman did not give the Sterling Heights officer permission to enter the 

residence. (Exhibit E, 37). Melise did not see how the elderly woman ended up on the floor. 

Id. The elderly woman was on the floor the entire time until Melise left the residence with 

Gojcaj. (Exhibit E, 38). The elderly woman eventually left the residence with the assistance of 

an ambulance. Id. Melise did not hear the elderly woman complaining of any injuries, but that 

all he heard was the woman screaming. (Exhibit E, 39). 

Melise testified that none of the officers did a search of the house and he did not observe 

any of the officers complete a search of the house. (Exhibit E, 42). Further, there was no search 

of the house when Mr. Gojcaj re-entered the home. Id. 

Melise testified after reviewing the videotape state that he could not see the two assaults 

which he had testified to earlier. (Exhibit E, 48). Melise did not hear the woman on the 

videotape say that she was going to get her gun and shoot the officers. However, he viewed her 

actions as a threat. Id. Melise did not know if the woman had the capability of carrying out the 

threat. Id. Melise then admitted that he could have stepped back and left the premises. (Exhibit 

E, 50). Melise also admitted that he was using the threat of towing Ms. Perovich’s vehicle to get 

her to produce her son. (Exhibit E, 51). Melise did not perform a protective sweep of the area 

when he went into the residence, nor did he observe any of the officers perform a protective 

sweep for any weapons. (Exhibit E, 55). Melise admitted that the officers could have moved to 

the side if the woman got a gun. Further, he agreed that the officers could have done a lot of 

things including calling a swat team, if the woman threatened them with a gun, but they did not 

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9

undertake any of these other alternatives. Melise called the threat made by an elderly woman a 

credible threat and yet he no protective sweep was undertaken by any of the officers in Ms. 

Perovich’s residence. (Exhibit E, 62). 

Sergeant Burgess overheard a run to an address on Penny Street in Sterling Heights on 

October 30, 2007 and showed up as a back-up officer. Burgess observed Sergeant Cattaneo 

approach the residence and knock on the door and a female answered the door. 

 The woman who answered the door was yelling and screaming profanities, but Burgess 

could not tell exactly what she was saying. (Exhibit F, 16). Burgess had learned that Ms. 

Perovich had called the Sterling Heights Police Department and had wanted the police out there. 

(Exhibit F, 18). Burgess observed that the residence had two (2) doors, a screen door and the 

door wall itself. Burgess observed the woman to open the screen door with her right hand and 

prop it open. (Exhibit F, 19). Melise threatened to tow Perovich’s vehicle, and Burgess 

believed that her hostility escalated “quite a bit” . (Exhibit F, 21).

Burgess observed that the elderly woman had one foot and most of her body out of the 

house and was vigorously pointing and shaking her hand into Sergeant Cattaneo’s face. (Exhibit 

F, 22,23). Exhibit A clearly demonstrates that Perovich at no time had her body out of her 

residence and only an arm can be observed. Burgess described Ms. Perovich’s statements as 

“she was just on a rant”. Id. No officers drew their firearms when Ms. Perovich was on her rant. 

(Exhibit F, 24). None of the officers took a defensive posture when Ms. Perovich was on her 

rant and they had no knowledge as to whether or not there were guns in the house. Id. 

Sergeant Burgess described the woman he saw at the residence as being a large woman. 

(Exhibit F, 31). (Exhibit L). Despite the fact that Ms. Perovich is a large woman, she was able 

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10

to see her “spin around and make a break for the house”. Id. Burgess claimed that after the large 

woman attempted to go into the house, she again turned and saw her push Cattaneo. At this 

point the large woman spun to the left and proceeded into the house. (Exhibit F, 34,35). 

Burgess testified that Perovich just dropped and fell to the floor, like she was throwing a 

temper tantrum. (Exhibit F, 35). Burgess claims that there is a step up into the living room of 

the Perovich home, however, there is no such step into the home. (Exhibit M). 

The officers did not perform a protective sweep or search of the entire house. (Exhibit F, 

51). Burgess testified that he would be putting himself in harm’s way by retreating from a 

residence, rather than entering a residence and not knowing if the elderly woman had a gun in the 

immediate vicinity. (Exhibit F, 52). Burgess noted after reviewing the transcribed portion 

(Exhibit H) of the videotape (Exhibit A) that the woman stated I’m going to get my gun and get 

you off my premises, in response to Melise’s question what are you going to do about it. 

(Exhibit F, 59). Burgess agreed that audio portion of the videotape was different than what he 

described in his police report. Id. 

Burgess after having an opportunity to view the videotape during his deposition admitted 

that he did not observe a push on the videotape. (Exhibit F, 67). Burgess agreed that he did not 

see any pushes on the videotape. (Exhibit F, 69). Burgess admitted that he could hear the 

woman screaming on the video, when the officers had entered the residence. Id. The screaming 

appears to be simultaneous with the police officers entrance into the residence. (Exhibit A). 

Sergeant Cattaneo went to the Perovich residence and knocked on the door to make 

contact with the owner and advise such person as to why Detective Melise was there. (Exhibit 

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11

G, 11). Perovich came to the door and was still on the phone with dispatch and the officers to 

tried to get Ms. Perovich to hang up the phone and talk to them.

Pervovich partially opened the main door and then opened the door all the way. (Exhibit 

G, 15). Perovich, after opening the wooden door, then opened the screen door with her right 

hand. (Exhibit G, 16). Cattaneo heard Melise threaten that he was going to tow the vehicle. 

(Exhibit G, 17). Cattaneo prior to his arrival, believed he was going to the Penny address to 

assist a resident in her home. Id. 

Cattaneo testified that Perovich stated that she was going to get her gun and shoot their 

ass in response to Detective Melise threatening to tow her vehicle. (Exhibit G, 20). The 

videotape certainly is in conflict with Cattaneo’s testimony. 

Cattaneo had received seven (7) years SWAT team training and he agreed that he could 

have called the SWAT team in this instance, but did not do so. (Exhibit G, 31). Cattaneo was 

making the situation safer by going into a residence without knowledge as to where the firearm 

was. Id. Cattaneo did not have his firearm or taser drawn at the time that he entered the 

residence and believed he was going to be shot. (Exhibit G, 32, 33). Perovich purportedly 

pushed Cattaneo with her right hand. (Exhibit G, 33). Perovich then made a break for the 

house and Cattaneo tried to detain her, by putting his arm on her arm and it was at this time that 

Perovich pushed Cattaneo away. (Exhibit G, 34). Cattaneo’s answers to his interrogatories are 

devoid of any reference, regarding Perovich threatening to shoot anybody. (Exhibit G, 38).

After the incident Sergeant Cattaneo confiscated the videotape from Ms. Perovich’s 

residence without her permission. (Exhibit G, 44). When viewing the videotape, Cattaneo 

testified that the push occurred when Perovich turned and attempted to enter the house. (Exhibit 

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12

G, 48). Cattaneo was moving pretty slow when he entered the residence. (Exhibit G, 49). 

Perovich did not plead guilty to any assault, but rather pled no contest to a mystical offense, of 

attempted resisting and obstructing arrest. (Exhibit G, 51). 

Cattaneo recognized Perovich as an obese woman and acknowledged that one of the 

pictures depicted bruising on Ms. Perovich’s right arm, which was consistent with the spot where 

he had grabbed Ms. Perovich. (Exhibit G, 65). Cattaneo only heard Ms. Perovich complain of 

injuries to her back. Cattaneo said that Ms. Perovich was screaming for a period of time and was 

not certain as to whether she heard his commands. (Exhibit G, 72). 

 Each of the officers in this involved in this incident have through their reports and/or 

through discovery suggested that the woman threatened to get her gun and shoot them, but 

exhibits A and F, clearly point out that Perovich did not state that she was going to shoot anyone.

Defendants have all suggested that Ms. Perovich’s statement was a legitimate threat, 

however, Defendant, Cattaneo and former Defendant Melise were observed to on a videotape 

to not be affected by Ms. Perovich’s statement that she was going to get a gun.

II. STANDARD OF REVIEW

“Summary judgment is proper where no genuine issue of material fact exists and the moving 

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for 

summary judgment, the district court must construe all reasonable inferences in favor of the 

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. 

Ct. 1348, 89 L. Ed. 2d 538 (1986). The central issue is "whether the evidence presents a 

sufficient disagreement to require submission to a jury or whether it is so one-sided that one 

Case 2:09-cv-12192-PJD-VMM Document 27 Filed 09/21/10 Page 18 of 28
13

party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 

106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).” Lockett v. Suardini, 526 F.3d. 866 (6th Cir. 2008).

"At the summary judgment stage . . . once we have determined the relevant set of facts and 

drawn all inferences in favor of the nonmoving party to the extent supportable by the record . . . 

the reasonableness of [the defendant's] actions . . . is a pure question of law." Id.; see also 

Marvin, 509 F.3d at 244.” Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008).

III. DEFENDANTS STERLING HEIGHTS POLICE OFFICERS ARE NOT ENTITLED 

TO QUALIFIED IMMUNITY WITH RESPECT TO PLAINTIFF’S CLAIMS

A. Law Applicable To The Qualified Immunity Defense

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme 

Court held that the requisites of a qualified immunity defense are to be analyzed in a distinct 

two-step process. The initial inquiry should be whether the facts alleged showed that the officer's 

conduct violated a constitutional right. If the answer to that question is in the affirmative based 

on a plaintiff-favorable view of the evidence, then the second inquiry is whether the right at issue 

was clearly established. If the right is clearly established, then summary judgment based on 

qualified immunity must be denied. Properly analyzed here, reasonable jurors could find a 

constitutional violation of clearly established law.

B. Defendants misinterpret Plaintiff’s Complaint suggesting that she has made a 42 USC 

1983 claim for false arrest for the offense of Attempted Resisting and Obstructing 

Arrest.

Plaintiff seeks claims for relief is based upon the unlawful entry into Defendant’s 

residence, as well as the excessive force used against Ms. Maria Perovich, and various state law 

claims. Therefore, Defendants argument that Plaintiff is estopped from re-litigating a false arrest 

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claim is without merit. Plaintiffs would respectfully request that this Honorable Court consider 

any purported resisting and obstructing arrest by Ms Maria Perovich, in conjunction with the 

police using excessive force to subdue Ms. Perovich. Lockett, supra.

C. Defendants are not entitled to Qualified Immunity on Plaintiff’s Unlawful Entry 

Claim

At the outset Defendants posit two (2) theories as to their justification for entering Ms. 

Perovich’s residence on October 30, 2010. First of all, Defendants suggest that as Sergeant 

Cattaneo was pushed by Ms. Perovich, then he could enter the residence to effectuate an arrest of 

Ms. Perovich for assault and battery. Secondly, Defendants suggest that they could enter the 

residence, due to the fact that they were threatened with being shot by Ms. Perovich. 

“In general, the existence of probable cause in a 1983 action presents a jury question 

unless there is only one reasonable determination possible.” Gardenhisr v Schubert, 205 F3d 

303, 315 (6th Cir. 2000) (Citations omitted). Probable cause exists when police officers have 

“reasonably trustworthy” information to warrant a “prudent man” in believing that a person has 

committed a criminal offense. Id. (Citations omitted). 

The fact that Plaintiff, Perovich did not plead to an assault and the fact that she has 

denied ever assaulting any of the officers is a question for the trier of fact. The videotape as 

provided to Defendants and reviewed by them during their depositions demonstrates that 

Perovich did not push the officer as has been suggested. Defendants suggest in their self serving 

testimony, that the assault occurred off camera, wherein Plaintiff Perovich suggests no assault 

occurred whatsoever. This is a question of fact and summary judgment should be denied. 

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Defendants also suggest that as the officers were threatened there were exigent 

circumstances to permit entry into the Perovich residence without a warrant. 

 In People v Roger Dillard, 115 Mich App 640 NW2d 757 (1982), the Michigan Court 

of Appeals held that the warrantless arrest of the defendant in his home was illegal. The Court of 

Appeals also held that the defenda0nt had a right to defend himself in resisting an unlawful 

arrest, provided the force was reasonably necessary. Id @ 641 (citations omitted). The court of 

appeals likewise noted that the Defendant’s actions did not involve any actual use of force and 

there was no harm or injury done to the parties involved. Id @642.

In Dillard, the Battle Creek Police Department received information that the Defendant 

was a wanted suspect for a felonious assault offense which was to have been committed in Flint 

approximately five hours earlier. Two Battle Creek Police Officers went to the Defendant’s 

home without a warrant and knocked on the door. Defendant then opened his inner door and was 

told that he was under arrest, wherein Defendant refused to go with the officers as they did not 

have a warrant. Defendant then closed the door and the officers responded that they would use 

force to enter the residence to effectuate an arrest. Defendant did not respond and the officers 

forcibly entered Defendant’s residence where they encountered the Defendant with a shotgun, 

pointed at the officers and told them to leave. The officers left and shortly thereafter 

surrendered. Defendant’s conviction for felonious assault was reversed. 

Here, Defendants suggest that they entered as they were threatened with being shot and 

Perovich unlike Dillard was unarmed. Further, Sergeant Cattaneo and Detective Melise admitted 

in their deposition testimony that other means could have been employed before forcibly 

entering Ms. Perovich’s residence. The old adage that a picture is worth a thousand words and 

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both Cattaneo and Melise are seen on camera as not so much as even flinching, when Perovich 

suggests that she is going to get a gun. No defensive posture is undertaken and none of the 

officers draw their firearms. Indeed, Cattaneo is overheard entering the residence telling Ms. 

Perovich to go get your son and where is your son at, rather than immediately announce that he 

was arresting her for threatening a police officer. Additionally, a careful review of such tape 

reveals that nearly 20 seconds elapse before the officers even attempt to enter the residence. 

Certainly, if the officers feared for their safety, there would be no undue delay in entering the 

residence and apprehending Ms. Perovich. Cattaneo testified that his entry into the residence 

was real slow, and if he reasonably believed Perovich was going to spin around and make a 

break into the house to get a gun, then his pace would be swift, as to prevent such occurrence.

Defendants cite to their expert’s affidavit in support of their motion, to justify dismissal 

of this cause of action. At the outset, Plaintiff objects to the untimely tendering of the affidavit 

in support of the motion and respectfully requests that this Honorable Court not consider the 

same. The affidavit was not tendered in advance of the filing of the instant motion and further, 

the attachments were not included with the motion, prompting Counsel to request a copy last 

week and Counsel received the same on September 15, 2010, certainly without an opportunity to 

question such expert and to retain an expert to compile a report in opposition to the same.

In the event that this Honorable Court decides to consider said affidavit, then Plaintiff 

suggests that the affidavit invades the province of the jury and offers opinions as to questions of 

fact. Defendant’s expert offers his opinion that there were exigent circumstances which allowed 

entry into Perovich’s home. This is a question of fact as to whether there were exigent 

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circumstances to enter said residence. As pointed out above, Plaintiff has demonstrated that

there were no exigent circumstances in which to enter the residence.

Further, a review of Defendants’ expert’s affidavit demonstrates that such expert has not 

undertaken a thorough examination of the facts. As an example in paragraph 7(j) the expert 

incorrectly concludes that the “only record evidence shows that Perovich dropped to the floor on 

her own actions”. Mr. Gojcaj’s testimony demonstrates that his mother was forced to the floor. 

Exhibit B-1, 141, 145). Likewise, Exhibit A which was produced in each of the Defendants’ 

depositions demonstrates that Perovich based upon her reaction was immediately forced to the 

floor by Sergeant Cattaneo. Mr. Gojcaj’s deposition also demonstrates that his mother was 

forced to the floor.

As another example, Defendants’ expert suggests that “the undisputable audio of the 

incident” demonstrates Perovich was actively resisting arrest. The expert fails to consider the 

entire audio portion of the videotape, wherein Ms. Perovich suggests that she was pushed by 

Sergeant Cattaneo. Exhibit H. 

Based on the law, the depositions and the affidavits, the individual Defendants are not 

entitled to qualified immunity on the § 1983 claim. Reasonable jurors will also almost certainly 

conclude that the unlawful entry into Plaintiff’s residence was not objectively reasonable, and in 

the circumstances presented, Defendants clearly violated Ms.Perovich's Fourth Amendment right 

to be free from an unconstitutional seizure.

D. Plaintiff’s Fourth Amendment rights were violated by Defendants and therefore, 

Defendants’ motion, as it pertains to Plaintiff’s Excessive Force Claim Must Fail.

The Constitutional Standard For Excessive Force Claims

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Section 1983 provides a cause of action for "the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws" by any person acting "under color of any 

statute, ordinance, regulation, custom, or usage, of any State or Territory." 42 U.S.C. § 1983.

"To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed 

favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the 

United States (2) caused by a person acting under the color of state law." Sigley v. City of Parma 

Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citations omitted).

“In determining whether a constitutional violation based on excessive force 

has occurred, we apply "the objective-reasonableness standard, which depends 

on the facts and circumstances of each case viewed from the perspective of a 

reasonable officer on the scene and not with 20/20 hindsight." Fox v. DeSoto, 

489 F.3d 227, 236 (6th Cir. 2007) (citing Graham v. Connor, 490 U.S. 386, 

395-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). "The calculus of 

reasonableness must embody allowance for the fact that police officers are 

often forced to make split-second judgments--in circumstances that are tense, 

uncertain, and rapidly evolving--about the amount of force that is necessary in 

a particular situation." Graham, 490 U.S. at 396-97. "Relevant considerations 

include 'the severity of the crime at issue, whether the suspect poses an 

immediate threat to the safety of the officers or others, and whether he is 

actively resisting arrest or attempting to evade arrest by flight.'" Fox, 489 F.3d 

at 236 (quoting Graham, 490 U.S. at 396).” Dunn, supra at pp.353-354.

A court must inquire whether “any officer in the Defendant’s position, measured 

objectively, would have clearly understood that he was under an affirmative duty to have 

refrained from such conduct. Dominque v Telb, 831 F2d 673, 676 (6th Cir. 1987).

A jury could reasonably conclude that a reasonable officer in the Defendant 

Sterling Heights Police Officers position was never in any danger. Plaintiff without 

repeating some of the arguments above suggest that the facts demonstrate that the officers 

were not in any danger. The officers put themselves in harm’s way, as Sergeant Cattaneo 

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testified that a SWAT team could be called, and Melise testified the officers could have 

left or done other things rather than enter the residence. The police were investigating a 

misdemeanor not committed in their presence and later when Plaintiff Perovich makes a 

statement wherein the officers believe she is ranting and raving they enter the house and 

force a disabled woman to the floor.

Thereafter, in the presence of Mr. Victor Gojcaj, the officers drive their knee into 

the back and head of Perovich. Plaintiff was physically unable to fight off the officers 

and nor was she able to flee her own home to evade arrest. The actions of the Defendants 

herein were not reasonable under the circumstances and therefore, Defendant’s motion 

must fail. 

Plaintiff for purposes of judicial economy will not repeat the arguments pertaining 

to the Defense Expert, however, Plaintiff submits that the expert’s suggestion that the 

officers acted reasonable in the use of force fails to take into account the fact that Plaintiff 

Perovich is a disabled woman. 

Further it is possible for a finding that a person was resisting arrest to coexist with a 

finding that the police used excessive force to subdue him. See Lockett v. Suardini, 526 F.3d. 

866, 873 (6th Cir. 2008).

Defendants have argued that Plaintiff has not provided any medical documents showing 

that Ms. Perovich treated for injuries to her head and back and consequently, Plaintiff’s case 

must be dismissed. Here, Plaintiff has tendered a number of medical records following her 

assault on October 30, 2007. Ms. Perovich was treated on the same day in which she was 

assaulted, as well as November 6. 2007, November 25, 2007, and December 20, 2007. The 

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hospital visits are all related to the assault dating back to October 30, 2007. (Exhibits I, J & K). 

Further, on December 6, 2007 Ms. Perovich did treat with Dr. Aleida Rivera, due to a muscle 

strain in her back, which is only five weeks from the time in which she had been victimized by 

Defendants herein. (Exhibit K). Additionally, Perovich had an abnormal ECG when she was 

treated at the hospital on October 30, 2007. (Exhibit J). Likewise, the ECG of October 30, 2007 

displays an inferior infarct and on December 21, 2007, the ECG was abnormal and an anterior 

infarct could not be ruled out. The Beaumont Hospital visits are directly attributable to the 

October 30, 2007. Mr. Gojcaj, was advised by the Doctor who examined the ECG on October 

30, 2007, that his mother had a heart attack. (Exhibit B, 30). 

Additionally, Defendants’ motion ignores the fact of Ms. Perovich’s conscious pain and 

suffering which Perovich experienced at the hands of Defendants herein. The videotape attached 

hereto as exhibit A, demonstrates that Plaintiff, Maria Perovich was screaming in excruciating 

pain, when she forced the floor and then when Defendant Fett had a knee on Plaintiff’s head, and 

Cattaneo had a knee on her back. Ms. Perovich is also heard on the audio portion of the 

videotape crying from the pain she experienced after suffering from being assaulted by Fett and 

Cattaneo.

Defendants’ argue that the fuzzy pictures provided by Plaintiff show bruising and nothing 

more, but the pictures together with the audio portion of the videotape, along with the medical 

records substantiate a valid 1983 claim and therefore, Defendants’ motion must be dismissed. 

Further, if Defendants did not believe that Plaintiff Perovich was indeed seriously injured, then 

Sergeant Cattaneo would have not called an ambulance on behalf of Ms. Perovich. 

Based on the law, the depositions and the affidavit, Defendants are not entitled to 

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qualified immunity on the § 1983 claim. Reasonable jurors will also almost certainly conclude 

that the use of force in this case was not objectively reasonable, and Defendants clearly violated 

Ms.Perovich's Fourth Amendment right to be free from an unconstitutional seizure.

IV. PLAINTIFF’S STATE LAW CLAIMS CAN BE REMANDED TO STATECOURT

INTHE EVENT THAT THIS HONORABLE COURT WERE TO DISMISS 

PLAINTIFFS’ 1983 CLAIMS

Defendants have suggested that if this Honorable Court would dismiss Plaintiffs’ federal 

law claims that the court could exercise jurisdiction and dismiss the state law claims. This 

Honorable Court has the authority to exercise pendent jurisdiction and likewise can remand any 

remaining state law claims to state law in the event that the court chooses not to exercise 

jurisdiction. Defendants suggest that if this Honorable Court were to reach a decision that it was 

to dismiss all of Plaintiffs’ federal claims, then this Court must dismiss the remaining state law 

claims. This analysis is flawed, as this Court can choose to not exercise any further jurisdiction 

upon Defendants remaining state law claims and remand the matter to the appropriate state court 

tribunal. Counsel respectfully submits that all of Plaintiffs’ claims should be decided by the trier 

of fact, and in the event that this Honorable Court dismisses Plaintiff’s federal claims, Plaintiffs’ 

seek a remand of their state law claims. 

V. CONCLUSION

Defendants had no justification coming to Plaintiff’s residence and threatening to take her 

vehicle, like they had no justification in entering Plaintiff’s residence and later forcing Plaintiff 

to the floor and thereafter causing Plaintiff to be hospitalized where she suffered not simply 

bruises, but may have suffered a minor heart attack when the officers were assaulting an elderly 

disabled woman. Plaintiff respectfully requests that this Honorable Court enter an order 

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denying Plaintiff’s Motion for Summary Disposition and set this matter on for a trial before the 

trier of fact.

Respectfully submitted,

/s/ Patrick J. McQueeeny

PATRICK J. McQUEENEY (P45797)

Attorney for Plaintiffs

33830 Harper Avenue

Clinton Township, Michigan 48035

(586) 774-6363

Dated: September 20, 2010

CERTIFICATION OF SERVICE

I hereby certify that I electronically filed the foregoing document with the Clerk 

of the Court using the ECF system which will send notification to all attorneys of 

record.

/s/ Patrick J. McQueeney

PATRICK J. McQUEENEY (P45797)

Attorney for the Plaintiffs

33830 Harper Avenue

Clinton Township, Michigan 48035

(586) 774-6363

Dated: September 21, 2010

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