United States District Court, N.D. California
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AS
TO DEFENDANT CASEY BROGDON RE: DKT. NO. 47
A. WESTMORE UNITED STATES MAGISTRATE JUDGE
Malad Baldwin and Kathryn Wade brought the instant lawsuit
against Defendants James Colley and Casey Brogdon, alleging:
(1) a 42 U.S.C. § 1983 claim based on "violation of
constitutional rights under color of state law,
" (2) assault, (3) battery, and (4)
negligent infliction of emotional distress ("NIED")
as to Plaintiff Wade. (Compl., Dkt. No. 1.) Defendants then
moved for summary judgment on Plaintiff Wade's NIED
claim. (Defs.' Mot., Dkt. No. 47.) In a separate order,
the Court denied Defendants' motion for summary judgment
as to the NIED claim against Defendant Colley. (Dkt. No. 53.)
Upon consideration of the moving papers and supplemental
briefs, as well as the arguments presented at the April 6,
2017 motion hearing, and for the reasons set forth below,
Defendants' motion for summary judgment as to the NIED
claim against Defendant Brogdon is DENIED.
their moving papers, Defendants argued that summary judgment
should be granted in favor of Defendant Brogdon because
Plaintiff Wade did not see him use any force against
Plaintiff Baldwin, as he was responsible only for holding
Plaintiff Baldwin to the ground. (Defs.' Mot. at 9.)
Plaintiffs opposed, arguing that "[t]he two officers
were in a joint venture to effectuate the arrest of
[Plaintiff] Baldwin, " such that "the fact that
[Defendant] Colley was the one delivering the blows and
[Defendant] Brogdon was the one immobilizing [Plaintiff]
Baldwin to receive those blows provides absolutely no
protection for [Defendant] Brogdon against liability"
for emotional distress to Plaintiff Wade. (Plfs.'
Opp'n at 9.) Neither party provided legal authority in
support of their position. (See Defs.' Mot. at
9; Plfs.' Opp'n at 9, Dkt. No. 49; Defs.' Mot. at
8-9.) At the April 6, 2017 hearing, the Court permitted the
parties to provide supplemental briefing on the applicability
of the "integral participant" theory. (Dkt. No.
51.) On April 10, 2017, Defendants filed their supplemental
brief. (Defs.' Supp. Brief, Dkt. No. 52.) On April 17,
2017, Plaintiffs filed their responsive supplemental brief.
(Plfs.' Suppl. Brief, Dkt. No. 54.)
the Ninth Circuit, a plaintiff may hold multiple police
officers liable when at least one officer violates the
plaintiff's constitutional rights based on an
'integral participant' theory of liability."
Bresaz v. Cty of. Santa Clara, Case No.
14-cv-3868-LHK, 2015 WL 1230316, at *3 (N.D. Cal. Mar. 17,
2015) (citing Chuman v. Wright, 76 F.3d 292, 295
(9th Cir. 1996)). Integral participation "require[s]
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). For
example, an officer who arrives at a scene after an arrest
was completed "d[oes] not participate in any integral
way in the arrest." Id. By contrast, an
officer's assistance in handcuffing a plaintiff which
"was instrumental in the officers' gaining control
of [the plaintiff, ] which culminated in [the] application of
hobble restraints, " is integral to the application of
the hobble restraints. Id.
argue that the "'integral participant' theory
does not appear to apply in the context of state tort claims,
" but are unable to point to any authority. Instead, in
support of this argument Defendants point to the lack
"of any authority that states this theory of liability
may be applied in state tort claims, and more specifically to
hold a defendant liable for NIED as an 'integral
participant' when their own conduct would not be grounds
for specific NIED recovery." (Defs.' Supp. Brief at
2.) Defendants, however, cite to Bresaz, which did
apply an integral participant theory to an NIED claim.
(Id.) There, the plaintiffs had brought claims,
including an NIED claim,  against two officers who responded to a
call about the decedent, who had a history of mental illness.
2015 WL 1230316, at *1. Although the officers allegedly
should have known they were responding to a call regarding a
person with mental health issues, one of the officers
approached the decedent from behind, causing the decedent
further distress. Id. at *2. The decedent then moved
towards the officer, and the second officer moved quickly
towards the decedent, causing the decedent to swing his key
chain at the officers. The second officer shot the decedent
in the stomach, killing him. Id. The district court
denied the motion to dismiss the claims against the officer
who did not shoot, applying the integral participant theory.
Id. at *5.
Plaintiffs appear to disclaim the use of the integral
participant theory, arguing that "[n]either Plaintiffs
nor Defendants have ever invoked the 'integral
participant' theory in this case, " and that
"[t]he doctrine has no applicability to the case now at
bar." (Plfs.' Supp. Brief at 2.) Plaintiffs repeat
arguments about NIED generally, relying on cases that the
Court already explained were rejected by the California
Supreme Court. (Dkt. No. 53 at 7 (explaining that the
California Supreme Court had rejected Archibald v.
Braverman, 275 Cal.App. 2d 253 (1969) and Nazaroff
v. Superior Court, 80 Cal.App.3d 553 (1978)); Plfs.'
Supp. Brief at 3-4 (citing to Archibald and
Nazaroff)). Even if those cases were still good law
-- which they are not -- they are not relevant to the instant
discussion because those cases concern contemporaneous
observation. In contrast, Defendants' motion concerns
whether Defendant Brogdon can be held liable for holding
Plaintiff Baldwin down when Plaintiff Wade did not actually
witness him beat Plaintiff Baldwin.
disclaimer of the integral participant theory seems to be
based on a fundamental misunderstanding of the integral
participant theory, as Plaintiffs argue that Defendant
Brogdon can be held liable for his "indispensable
assistance . . . in keeping Plaintiff Baldwin immobilized
against the ground" while Defendant Colley beat
Plaintiff Baldwin. (Plfs.' Supp. Brief at 4.) This is, in
essence, how the integral participant theory applies. Here,
Plaintiff Wade witnessed Defendant Brogdon holding Plaintiff
Baldwin down while Defendant Colley beat him with a
flashlight. (Blechman Decl., Exh. B ("Wade Dep.")
at 107:20-21, 108:9-13, Dkt. No. 47-1.) By holding Plaintiff
Baldwin down by his neck, Defendant Brogdon was able to
control Plaintiff Baldwin, which allowed Defendant Colley to
commit the alleged violation. Thus, the Court concludes that
Defendant Brogdon was an integral participant to the alleged
violation, comparable to the officer who is integral to the
application of hobble restraints by assisting in handcuffing
a plaintiff which in turn, allows the officers to gain
control of the plaintiff in order to apply the hobble
restraints. See Blankenhorn , 485 F.3d at 481 n.12;
see also Bresaz, 2015 WL 1230316, at *3-5 (denying
motion to dismiss claims -- including NIED claim -- based on
the integral participant theory). He may, therefore, be held
liable for Plaintiff Wade's NIED claim; this is a
question of fact for the jury to decide.
reasons stated above, the Court DENIES Defendants' motion
for summary judgment as to Defendant Brogdon.
order disposes of Docket No. 47.