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Edward Colson v. City of Bakersfield

July 10, 2012



This case arises from an encounter between Plaintiff Edward Colson ("Colson") and members of the City of Bakersfield Police Department ("the City"), including Defendants Dennis Park ("Park") and Charles Wright ("Wright"). Colson contends that he suffered injuries when City police officers dragged him along the ground while handcuffed in the course of a search of his pick up truck. Colson brings twelve causes against the Defendants, including claims under

42 U.S.C. § 1983 and claims under California common and statutory law.*fn1 Defendants now move for summary judgment on all claims. For the reasons that follow, Defendants' motion will be granted in part and this case will be dismissed.


In the early morning hours of January 11, 2010, Colson was awakened by Mandi Patton ("Patton"). See PUMF 3. Colson and Patton were both staying the night at a mutual friend's home following a day of watching football. See PUMF 2. After several requests, Patton eventually convinced Colson to take her to talk to her boyfriend Donnie Lee ("Lee"), who was Colson's roommate. See PUMF's 1, 3. Colson and Patton drove in Colson's gray truck to see Lee.*fn3 See PUMF 3. At Lee's house, Colson stayed in his truck while Patton attempted to talk to Lee. See PUMF 4. Lee would not let Patton inside, and she eventually returned to Colson's truck and they drove away. See id. Unknown to Colson and Patton, Lee called the City Police Department and reported that there was a man with a gun driving a gray truck. PUMF 5.

Apparently after Lee's report, see id., several City police officers, including Park and Wright, were informed via a radio broadcast that Colson had just left his residence and was in possession of a firearm. See DUMF's 1, 2.*fn4 While on patrol, Park and Wright observed a gray pick up truck (Colson's) pass them, and the truck matched the description given to them on the radio. See DUMF's 3, 4. Park and Wright activated their emergency lights, which resulted in Colson stopping his vehicle on the side of the road. See DUMF's 5, 6; PUMF 7.

After they pulled Colson's vehicle over, Park and Wright parked a distance away and waited for back-up. PUMF 7. When other back-up City police officers arrived, they surrounded the truck with their lights shining at the truck. See id. City police officers drew their weapons. See id. Over a loud speaker, a City police officer gave instructions to Colson.*fn5 PUMF 8.

Believing that Colson had a gun, the officers commanded Colson to throw his keys out of the driver side window and get out of the vehicle. DUMF 6. Colson complied with these orders. See PUMF 8. Colson saw that officers had pistols and shotguns out and pointed at him/his truck. See Colson Depo. at 54:7-16; see also Wright Depo. 30:2-13.

After Colson got out of the truck and put his hands up, officers asked Colson to walk backwards towards the them so that they could see him at all times. DUMF 7. Officers ordered Colson to get on his knees. PUMF 9. Colson told the officers that due to his weight and size, he would have difficulty complying with their requests. Id. Colson is over 6' 4" and, at the time, weighed about 450 lbs. See PUMF 10. Although Colson had difficulty, he eventually got on his knees with his hands in the air. See PUMF 11. Officers then came from behind to handcuff him. PUMF 12. Before being handcuffed, Colson told the officer to please use two pairs of handcuffs due to his size. See PUMF 13; Colson Depo. 63:8-64:12. Colson asked the officers twice to use two sets of handcuffs, but the officers never responded. See Colson Depo. 63:8-64:12. Instead, officers handcuffed Colson with one set of handcuffs. See PUMF 13; Colson Depo. 66:3-6.

Once handcuffed, officers instructed Colson to stand up. PUMF 14. Colson told the officers that he would have more difficulty getting up because of his weight and because he could no longer use his hands to support himself up. Id. An officer tried to help Colson up by lifting Colson's hands or arms up, but even with the officer lifting and Colson trying to get his legs underneath him, Colson could not get up and the officer became agitated. See Colson Depo. 67:20-69:9. After the officer attempted to lift Colson a second time, Colson began to experience pain in his right shoulder and wrist. See id. at 69:25-70:6. Another officer then came from behind Colson and grabs hold of Colson's left forearm. See id. at 70:7-10. One of the officers then told Colson, "If you don't get up, we're going to drag you." Id. at 70:16-20. The two officers then started to pull on Colson's arm and the handcuffs. See id. at 70:22-25. When the officers pulled, Colson experienced "excruciating" pain in his shoulder. See id. at 71:13-23. Colson screamed in pain. See id. at 73:12; Patton Dec. ¶ 10. The officers "dragged" Colson approximately two car lengths to a police vehicle, where Colson sat on the bumper. See Colson Depo. 78:4-11. By "dragging," Colson described that there were alternating periods of him trying to get his legs up underneath him, and his knees hitting the ground. See id. at 75:19-23.

Patton was ordered out of the truck, was handcuffed, and taken to the back of a police vehicle. See Patton Dec. ¶ 12. Patton counted approximately 8 police vehicles and 12 officers on the scene. See id. at ¶ 13. Officers then began searching Colson's truck. See Colson Depo. 81:1-21; DUMF 13. As officers searched the truck, Colson repeatedly asked an officer who was standing next to him what was going, but Colson never received a response. See Colson Depo. at 82:12-21. As the truck was being searched, officers also searched Colson's person. See id. at 82:22-84:12.

No weapons were found and there were no warrants outstanding for either Patton or Colson, so the officers released Colson within approximately 20 minutes of the stop. See DUMF 14. An officer told Colson that there had been a mistaken identity and that he was free to go. See Colson Depo. 85:13-25. An officer also informed Colson that the police had received an anonymous report that a man in truck had a gun. See PUMF 21; Patton Dec. ¶ 16. Later, Colson requested officer assistance in going back to his residence (presumably Lee's home) so that he could pick up his possessions, and an officer escorted Colson back to the residence. DUMF 15.

Colson did not request medical care at the search scene. See PUMF 24; see also DUMF 22. However, a couple of hours following the stop, Colson attempted to go to work but his right arm was in too much pain. PUMF 26. Colson consulted a doctor that day and the doctor diagnosed him with injuries to his right shoulder. PUMF 28. Colson's knees were also skinned and/or bloodied while the officers dragged him, and Colson later showed Patton that his knees were bruised. See Colson Depo. 75:22-76:8; Patton Dec. ¶ 17.

Aside from screaming while he was being dragged, see Colson Depo. at 73:12; Patton Dec. ¶ 10, Colson never complained or advised either Park or Wright that he was injured or experiencing any pain at the scene. See DUMF 20. Colson never asked Park or Wright for medical care or an ambulance at any time, nor did he request medical care or an ambulance from Defective Eddy, who accompanied Colson back to his residence following the stop. See DUMF

22. Detective Eddy never heard Colson make any complaints about being injured or having any pain whatsoever. See DUMF 21.

Park did not handcuff Colson, does not know who handcuffed Colson, and did not have any physical contact with Colson. See Park Depo. 23:3-6, 28:22-25; Park Dec. ¶ 2. Although Park testified that Colson was placed in the back of a police vehicle, he testified that he does not know who placed Colson in the vehicle. See id. at 24:7-16. Park testified that he spoke to and obtained information from Colson, including informing Colson of the reason for the stop, and also questioned Patton. See id. at 26:4-28:7; see also Park Dec. ¶ 3. Wright did not handcuff Colson, does not know who handcuffed Colson, and had no physical contact with Colson. See Wright Depo. 37:1-6; Wright Dec. ¶ 2. Wright's involvement at the scene was focusing on the passenger in the truck and searching the truck. See Wright Depo. 37:4-6, 40:8-14; Wright Dec. ¶3.

Neither Park nor Wright have final policy making authority, nor are they authorized final decision makers for the City. See DUMF 23. Park and Wright have declared that they have not discussed or entered into any agreement to violate Colson's civil rights. See DUMF 24. However, officers minimized the nature of Colson's stop. PUMF 25. In his report, Park omitted that: (1) this was a felony stop;*fn6 (2) several officers responded, not just Park and Wright; (3) Colson was told to exit his vehicle at gun point; (4) Colson was handcuffed; (5) Colson was dragged several feet; (6) Colson was in pain; (7) how information was dispatched to patrol units in the field; (8) whether a supervisor was present; (9) the length of the detention; and (10) any of the circumstances regarding Lee's false report. See id.; Clark Dec. ¶ 29; cf. Park Depo. Ex. 2.


Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000) If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a "justifiable inference" need not be the most likely or the most persuasive inference, a "justifiable inference" must be rational or reasonable. See Narayan, 616 F.3d at 899. Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

Finally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to comb through the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th Cir. 2009).


As noted above, Colson has brought twelve causes of action against the Defendants. The Court will address the causes of action separately, and will also assess the City's Monell liability separately from the federal claims against the individual officers.

I. First Cause of Action -- § 1983 -- Excessive Force

Defendants' Argument

Defendants state that liability under § 1983 is personal as to each defendant. Because they had no physical contact with Colson, Park and Wright argue that they cannot be liable.

Plaintiff's Opposition

Colson argues that the evidence shows that excessive force was used against him, and that the force caused injury to his shoulder. Although he cannot identify which specific officers used force against him, Colson argues that Park and Wright were present when the force was used. Under Ninth Circuit precedent, the is sufficient evidence to support reasonable inferences that Park and Wright used excessive force against him.

Legal Standard "A person subjects another to the deprivation of a constitutional right, within the meaning of [42 U.S.C. ยง 1983], if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As such, a plaintiff cannot hold an officer liable simply because of the officer's "membership in a group without a showing of individual participation in the unlawful conduct." Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002); see Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005); Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996). That is, "holding an officer liable who was merely present at the [incident] is not permissible." Jones, 297 F.3d at 939; see Motley, 432 F.3d at 1082; Lolli v. County of Orange, 351 F.3d 410, 417 (9th Cir. 2003). A plaintiff must "establish the 'integral participation' of the officers in the alleged constitutional violation." Jones, 297 F.3d at 935; see Torres v. City of Los Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008). "Integral participation" requires "some fundamental involvement in the conduct that allegedly caused the violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007); see Torres, 548 F.3d ...

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