Bailey v. Oakdale Police Department et al, No. 1:2005cv00113 - Document 91 (E.D. Cal. 2008)

Court Description: MEMORANDUM DECISION AND ORDER Granting in Part Denying in Part Defendants' Motion for Summary Judgment signed by Judge Oliver W. Wanger on 01/30/2008. (Flores, E)

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Bailey v. Oakdale Police Department et al Doc. 91 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 MARK ANTHONY BAILEY, Plaintiff, 9 12 13 14 15 16 MEMORANDUM DECISION AND ORDER GRANTING IN PART DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT v. 10 11 1:05-CV-00113 OWW SMS OAKDALE POLICE DEPARTMENT, THE CITY OF OAKDALE, OAKDALE POLICE OFFICER BRIAN SHIMMEL, individually and in his official capacity, OAKDALE POLICE OFFICER BRIAN SHIMMER, individually and in his official capacity, OAKDALE POLICE OFFICER TAYLOR, individually and in his official capacity, Defendants. 17 18 1. 19 20 INTRODUCTION This matter comes before the court on Defendants motion for 21 summary judgment to adjudicate Plaintiff Mark Anthony Bailey s 22 ( Bailey or Plaintiff ) § 1983 claims. 23 action under 42 U.S.C. § 1983 alleging a pattern and practice of 24 violation of civil rights by the Oakdale Police Department in 25 violation of the Fourth and Fourteenth Amendments that allegedly 26 resulted in the loss of his right leg. 27 Defendants motion for summary judgment was held on January 7, 28 2007. Bailey brings this The third hearing on 1 Dockets.Justia.com 2. 1 2 PROCEDURAL BACKGROUND On February 7, 2005, Plaintiff filed a first amended 3 complaint. 4 2005, Plaintiff s attorney withdrew from the case. 5 Motion to Withdraw as Attorney.) 6 Defendants filed a motion for summary judgment. 7 for Summary Judgment.) 8 12, 2007. 9 on February 20, 2007. 10 (Doc. 9, First Amended Complaint.) On November 18, (Doc. 37, On December 13, 2006, (Doc. 46, Motion Plaintiff opposed the motion on February (Doc. 54, Opposition.) Defendants filed their reply (Doc. 59, Reply.) A hearing for this motion was scheduled on March 12, 2007. 11 At the hearing Mr. Bailey requested additional time to secure an 12 attorney and obtain an expert witness. 13 thirty days to secure an attorney and file an opposition. 14 65, Minutes, Filed March 12, 2007.) 15 Mr. Bailey was given (Doc. Bailey engaged an attorney and filed a second opposition on 16 April 13, 2007. (Doc. 71, Opposition II.) On April 27, 2007 17 Defendants filed a reply to Bailey s second opposition. 18 77, Reply II.) 19 2007. 20 Defendants motion for summary judgment on Plaintiff s Monell 21 claim and denying Defendants motion for summary judgment on 22 Plaintiff s Fourth Amendment excessive force claim. 23 Order.) 24 adjudication of the remaining issues in Defendants Motion for 25 Summary Judgment, pursuant to Rule 56(f). 26 permitted to submit supplemental pleadings on the remaining 27 issues in Defendants Motion for Summary Judgment: (1) whether 28 there is a material issue of triable fact regarding causation for (Doc. A second hearing on the motion was held on May 7, An order was entered thereafter on June 19, 2007, granting (Doc. 83, Discovery was reopened for 90 days to facilitate the 2 Both parties were 1 Plaintiff s leg amputation; and (2) whether there is a material 2 issue of triable fact as to Plaintiff s Fourteenth Amendment 3 claim failure to provide known medical assistance/deliberate 4 indifference to medical condition. 5 Hearing.) 6 Defendants Motion for Summary Judgment on September 17, 2007. 7 (Doc. 84, Supplemental Opposition.) 8 reply to Bailey s Supplemental Opposition on October 15, 2007. 9 (Doc. 86, Reply III.) Plaintiff filed a supplemental opposition to 3. 10 11 A. (Doc. 82, Order After Defendants filed a third FACTUAL BACKGROUND Disputed Facts 12 i. The Arrest 13 On February 24, 2004, at approximately 8:30 p.m., Oakdale 14 Police Officer Shimmel was dispatched to a hit and run call of a 15 motorcycle hitting a fence. 16 about to make a call to the reporting party, when, while he was 17 stopped at the intersection of Orsi Road and Sierra Road, he saw 18 a motorcycle traveling at a high rate of speed. 19 Officer Shimmel activated his emergency lights as Bailey passed 20 his patrol car. 21 motorcycle to evade the traffic stop. 22 Shimmel accelerated his patrol car to catch up with Bailey and 23 turned northbound on View Point Avenue. 24 again looked back at Officer Shimmel and accelerated at a high 25 rate of speed causing the motorcycle to fishtail. 26 34.) 27 Point and East J Street. 28 stop signs. (DSUF, No. 29.) (DSUF, No. 31.) Officer Shimmel was (DSUF, No. 30.) Bailey accelerated his (DSUF, No. 32.) (DSUF, No. 33.) Officer Bailey (DSUF, No. Bailey then accelerated through the intersection of View The intersection is controlled by (DSUF, No. 35.) 3 1 Officer Shimmel was on the radio with dispatch to notify 2 them he was in pursuit when Bailey lost control of the motorcycle 3 in the cul-de-sac at the end of View Point Avenue and Gold Rush 4 Court. 5 parked car in front of a residence and then Bailey jumped up and 6 took off running on foot leaving the motorcycle at the scene. 7 (DSUF, No. 37.) 8 Court. 9 location to evade Officer Shimmel and to avoid arrest. 10 11 (DSUF, No. 36.) Officer Shimmel saw the motorcycle hit a The address of the collision was 1414 Gold Rush (DSUF No. 38.) Mr. Bailey jumped over a fence at this (DSUF No. 39.) Officer Shimmel began to pursue Bailey on foot and 12 eventually came to a fence that had a fifteen foot drop on the 13 other side. 14 car, advised Officer Shimmel that Bailey jumped the fence. 15 (DSUF, No. 41.) 16 Officer Shimmel that Bailey was on the ground on the other side 17 of the fence and it looked like he was hurt. 18 Mr. Staves had a flashlight on Bailey. 19 Shimmel notified dispatch of Bailey s location. 20 Officer Shimmel advised Mr. Staves and Mr. Fowler to get on the 21 phone with the Oakdale Police Department and keep them informed 22 of Mr. Bailey s actions. 23 around the residential area to Cottles Wood Park and entered 24 Oakdale Junior High School from the west side of the school. 25 (DSUF, No. 46.) 26 (DSUF, No. 40.) Mr. Fowler, the owner of the parked Robert Staves, the next door neighbor advised (DSUF, No. 42.) (DSUF, No. 43.) (DSUF, No. 45.) Officer (DSUF, No. 44.) Officer Shimmel drove Officer Taylor entered the school from the east side. 27 (DSUF, No. 47.) Officer Taylor ran through the walkway entrance 28 because all the driveway entrances were locked up. 4 (DSUF, No. 1 13.) 2 on his stomach with his arms underneath him and his legs straight 3 out. 4 pointed it at Bailey while waiting for backup. 5 A few moments later, Officer Shimmel, Sergeant Semore, Detective 6 Savage and Detective Perez arrived. 7 When Officer Taylor first came upon Bailey, he was laying (DSUF, No. 17.) Officer Taylor then took his gun and (DSUF, No. 18.) (DSUF, No. 19.) Officer Shimmel asked Bailey if he was hurt but claims 8 Bailey s speech was slurred. 9 Shimmel rolled Bailey over to pat him down, he could smell 10 11 alcohol on his breath. (DSUF, No. 48.) When Officer (DSUF, No. 49.) Officer Shimmel immediately called for an ambulance to be 12 dispatched to the Officers location because Bailey was not 13 moving and he had complained of pain in his right leg. 14 No. 50.) 15 (DSUF, At the hospital, Officer Shimmel had a nurse draw blood from 16 Bailey for a blood alcohol test. 17 Officer Shimmel was informed Bailey s blood alcohol was .22. 18 (DSUF, No. 52.) 19 Officer Shimmel noticed that Bailey s right knee was swollen. 20 (DSUF, No. 53.) 21 (DSUF, No. 51.) Ultimately, While the nurse was drawing Bailey s blood, Defendants argue that at the time an ambulance was requested 22 Bailey was limping, but was not complaining of any pain. (DSUF, 23 No. 22.) 24 of, nor did they have reason to believe the extent of plaintiff s 25 injury was anything other than a sprain or twist type injury. 26 (DSUF, No. 24.) 27 did they have reason to believe the injury was serious. 28 No. 25.) Defendants claim that at no time did the Officers know The Officers state that they did not believe nor 5 (DSUF, On the date of the incident, Sergeant Semore was in his 1 2 patrol unit when he heard a call on the radio that officer 3 Shimmel was in pursuit with a motorcycle. 4 Sergeant Semore could actually hear the motorcycle over the 5 radio. 6 of Cottles Wood Park. 7 exited his patrol unit and ran towards the pedestrian entrance. 8 (DSUF, No. 64.) 9 going on and officer Shimmel advised him that he had chased Mr. (DSUF, No. 62.) (DSUF, No. 61.) Sergeant Semore drove towards the area (DSUF, No. 63.) Sergeant Semore then Sergeant Semore asked officer Shimmel what was 10 Bailey, that Mr. Bailey jumped over the fence, and that Mr. 11 Bailey had injured his leg. 12 could see no visible signs of injury such as swelling or blood 13 through the jeans. 14 if he could walk but claims Bailey did not answer. 15 70.) 16 asserts he told Bailey to focus and Bailey responded that he 17 could walk. 18 he told officers he could not walk. 19 Exhibit A, Bailey Depo., p. 67:21-24.) 20 (DSUF, No. 66.) (DSUF, No. 69.) Sergeant Semore Sergeant Semore asked Bailey (DSUF, No. Because Bailey seemed very intoxicated, Sergeant Semore (DSUF, No. 71.) Plaintiff disputes this and claims (Doc. 72, Bailey Decl., According to Defendants, Sergeant Semore ordered Officers to 21 assist Bailey to the ambulance. 22 Officers were assisting Bailey to the ambulance, Sergeant Semore 23 walked behind him and shined his flashlight on Bailey s legs and 24 feet to again see if there were any visible signs of injuries to 25 his legs. 26 visible signs of injury to Bailey s legs but he did see Bailey 27 walking with a limp. (DSUF, No. 74.) (DSUF, No. 73.) While the Sergeant Semore did not see any (DSUF, No. 75.) 28 6 Defendants claim the 1 Officers supported Bailey s weight while they assisted him. 2 (DSUF, No. 76.) 3 After the Officers walked about 1 to 20 yards while 4 assisting Mr. Bailey and holding most of his weight so that it 5 was not upon his leg, Sergeant Semore then took over for an 6 officer and allegedly assisted Mr. Bailey to the ambulance. 7 (DSUF, No. 77.) 8 when he was relieved by Detective Perez. 9 Bailey disputes this and claims instead that he was dragged, Sergeant Semore only walked about 20-25 yards (DSUF, No. 78.) 10 screaming in pain, the length of a football field. 11 Bailey Depo., p. 62:21-64:8, 74:17-23.) 12 (Doc. 72, Sergeant Semore continued to walk with the Officers until 13 they were through the entrance of the park area where Bailey was 14 laid down. 15 Officers got to the entrance and Bailey was then transported by 16 ambulance to Oak Valley Hospital. 17 (DSUF, No. 79.) The ambulance arrived just as the (DSUF, No. 80.) Prior to the police chase, Bailey was drinking white 18 russians but does not remember how many. (DSUF, No. 106.) 19 Bailey does not recall saying anything to the Officers. 20 Mr. No. 122.) (DSUF 21 ii. Dr. Blaisdell 22 F. William Blaisdell, M.D. ( Dr. Blaisdell ) is a professor 23 of Surgery and Chair of Surgery at UC Davis School of Medicine. 24 (DSUF, No. 126.) 25 Surgery. 26 exact number of popliteal artery injuries he has seen. 27 believes through a lifetime of practice, he has examined and 28 treated more popliteal artery injuries than any surgeon in the Dr. Blaisdell s qualifications include Vascular (DSUF, No. 127.) Dr. Blaisdell cannot provide the 7 He 1 United States. (DSUF, No. 129.) 2 Bailey s medical records. 3 discharge summary notes from Oakdale Hospital and Doctors 4 Medical Center in Modesto as well as the x-rays and operative 5 notes. 6 only relied on his own personal knowledge of this injury. 7 this regard, he can also state that this injury commonly results 8 in limb amputation, primarily in young, active men. 9 131.) (DSUF, No. 130.) Dr. Blaisdell has reviewed These include the admitting and In addition to this, Dr. Blaisdell has In (DSUF, No. 10 iii. Dr. Rossini 11 Dr. Michael Rossini, Jr. ( Dr. Rossini ) was a trauma 12 director at Doctor s Medical Center in Modesto at the time of 13 Plaintiff s injury. 14 p. 3:13-14.) 15 two artery grafts to attempt to salvage Plaintiff s right leg and 16 a third surgery to amputate the leg above the knee. (PSUF, p. 17 3:14-15.) 18 surgeon and overseeing quality assurance of the emergency trauma 19 program. (PSUF, p. 3:16-17.) 20 surgeries on Plaintiff, including his leg amputation, testified 21 that first there was a knee injury, causing the knee to become 22 unstable and that secondarily caused the artery injury. 23 p. 4:3-5.) 24 damage to the popliteal artery. 25 an intimal tear to the interior layers of the popliteal artery 26 causing thrombosis and complete impeding of blood flow. 27 p. 4:17-20.) 28 them some sort of twisting mechanism put on the knee, that could (Doc. 84, Supplemental Opposition and PSUF, Dr. Rossini performed three surgeries on Plaintiff, Dr. Rossini s duties include being an on-call trauma Dr. Rossini, who performed three (PSUF, The knee instability caused by the fall caused some (PSUF, p. 4: 14-16.) There was (PSUF, If there is a partial dislocation of the knee, and 8 1 have caused damage to the popliteal artery. (PSUF, p. 4:7-9.) 2 Whether having a dislocated knee and then being dragged, 3 causing some torsion or twisting to an injured leg over some 4 period of time could have caused further damage to Plaintiff s 5 popliteal artery is hard to say. 6 the actual artery disruption occurred. 7 After an injury fall, any twisting, bending, or subsequent motion 8 or trauma is not beneficial and can only be categorized as 9 potentially damaging but how much or what was done Dr. Rossini There is no basis to opine when (PSUF, p. 4:11-15.) 10 cannot say with any certainty. (PSUF, p. 5:1-5.) The dragging 11 is not enough in and of itself. 12 testified that whether Plaintiff s injury was made worse by 13 dragging or whether it was continued by the dragging, is 14 uncertain but he believes it was probably made worse. 15 it would depend on the manner in which Plaintiff was dragged. 16 (PSUF, p. 5:9-11, 19-21.) (PSUF, p. 5:23-24.) Dr. Rossini However, 17 iv. Dr. Bozic 18 Kevin M. Bozic, M.D. ( Dr. Bozic ) is a physician, board 19 certified in Orthopedic Surgery and employed as an Assistant 20 Professor of Orthopaedic Surgery and an Attending Orthopaedic 21 Surgeon at the University of California, San Francisco. 22 72, Gohel Decl., Exhibit F, Bozic Decl., ¶ 1.) 23 reviewed Plaintiff s medical records, the depositions in this 24 case, the pre-hospital care report, witness statements and Dr. 25 Blaisdell s declaration. 26 Bozic s opinion, after reviewing Dr. Rossini s deposition 27 testimony, is largely consistent with Dr. Rossini s. 28 6:12-15.) (Doc. Dr. Bozic (Doc. 72, Bozic Decl., ¶ 2.) Dr. (PSUF, p. Dr. Bozic opines that the initial knee dislocation 9 1 occurred from the fall from the fence. 2 Bozic believes the proper procedure for the popliteal artery 3 injury, in order to salvage the leg, was to immobilize the leg 4 and move Plaintiff expeditiously to a Level I trauma facility. 5 (PSUF, p. 6:16-19). 6 could have been a factor contributing to further damage to 7 Plaintiff s popliteal artery injury. 8 Bozic opines that it is unlikely that Plaintiff could have walked 9 or bore weight on his leg for 100 yards, and if he did, he would have suffered severe pain. 11 B. (PSUF, p. 6:22-24.) Dr. (PSUF, p. 6:24-25.) Undisputed Facts Upon arrival at the scene, Sergeant Semore looked at 13 Bailey s leg with a flashlight. 14 wearing jeans and boots. 15 Dr. Being dragged or forced to walk 100 yards 10 12 (PSUF, p. 6:15-16.) (DSUF, No. 67.) Bailey was (DSUF, No. 68.) It was determined that Bailey required emergency surgery for 16 internal bleeding on his right leg. 17 transported to Doctors Medical Center in Modesto for surgery. 18 (DSUF, No. 55.) 19 (DSUF, No. 54.) Mr. Bailey has been convicted of felonies. Bailey was (DSUF. No. 100.) 20 Mr. Bailey has been convicted for Marijuana possession and 21 transportation of Methamphetamine. 22 convicted in 1999. 23 (DSUF. No. 101.) He was (DSUF. No. 102.) On the night of the incident, Mr. Bailey had a number of 24 alcohol drinks, white russians, at a place called Whiskey River. 25 (DSUF. No. 103.) 26 about 5:00 p.m. (DSUF. No. 104.) Mr. Bailey left the bar at 27 about 7:30 p.m. (DSUF. No. 105.) When Mr. Bailey got home his 28 girlfriend was physically and verbally angry at him for being Mr. Bailey arrived at the Whiskey River at 10 1 late. (DSUF. No. 107.) Mr. Bailey left on his motorcycle. 2 (DSUF. No. 108.) 3 up on the curb. 4 went down Sierra Street. 5 sure he was going over the speed limit. Mr. Bailey was driving, missed a turn, and went (DSUF. No. 109.) He then turned on to Orsi and (DSUF. No. 110.) Mr. Bailey was not (DSUF. No. 111.) Mr. Bailey saw a patrol car, got scared because he thought 6 7 he might be arrested. (DSUF. No. 112.) He knew the police were 8 following him and wanted him to pull over. 9 police car lights were activated. He saw that the (DSUF. No. 113.) So he parked 10 his motorcycle and ran because he was scared. 11 Mr. Bailey then jumped a fence and ran in someone s backyard. 12 (DSUF, No. 115.) He then jumped another fence and hurt his knee. 13 (DSUF. No. 116.) He estimates that the fence was six foot on the 14 side he jumped from and 12 to 13 foot drop on the other side. 15 (DSUF. No. 117.) 16 gave up at that point. 17 (DSUF. No. 120.) 18 not recall which Officers took him to the ambulance. 19 123.) 20 a gurney and then put into the ambulance. 21 knee hurt. 22 think it was broken. (DSUF. No. 118.) He was handcuffed. A. So, he in effect The police came. (DSUF. No. 121.) He does (DSUF. No. Once Mr. Bailey passed through the gate, he was placed on (DSUF. No. 124.) It felt like it was sprained and twisted. His He did not (DSUF. No. 125.) 4. 23 24 He could not run anywhere. (DSUF. No. 114.) LEGAL BACKGROUND Summary Judgment Standard 25 Summary judgment is warranted only if the pleadings, 26 depositions, answers to interrogatories, and admissions on file, 27 together with the affidavits, if any, show that there is no 28 genuine issue as to any material fact. Fed. R. Civ. P. 56(c); 11 1 California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). 2 Therefore, to defeat a motion for summary judgment, the non- 3 moving party must show (1) that a genuine factual issue exists 4 and (2) that this factual issue is material. Id. 5 of fact exists when the non-moving party produces evidence on 6 which a reasonable trier of fact could find in its favor viewing 7 the record as a whole in light of the evidentiary burden the law 8 places on that party. See Triton Energy Corp. v. Square D Co., 68 9 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty A genuine issue 10 Lobby, Inc., 477 U.S. 242, 252-56 (1986). 11 if they might affect the outcome of the suit under the governing 12 law. Campbell, 138 F.3d at 782 (quoting Anderson, 477 U.S. at 13 248). 14 Facts are material The nonmoving party cannot simply rest on its allegations 15 without any significant probative evidence tending to support the 16 complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 17 2001). 18 19 20 21 22 23 [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party s case necessarily renders all other facts immaterial. 24 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The more 25 implausible the claim or defense asserted by the nonmoving party, 26 the more persuasive its evidence must be to avoid summary 27 judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 28 12 1 52 F.3d 810, 815 (9th Cir. 1995). 2 must be viewed in a light most favorable to the nonmoving party. 3 Anderson, 477 U.S. at 255. 4 not to weigh evidence or resolve issues; rather, it is to 5 determine whether there is a genuine issue for trial. See 6 Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir. 1996). 7 B. 8 9 Nevertheless, the evidence A court s role on summary judgment is Summary Judgment in a Qualified Immunity Case In this case, Defendants assert the defense of qualified immunity on behalf of all the individual defendants. Deciding 10 qualified immunity entails a two-step analysis. 11 must ask whether a constitutional violation occurred at all. 12 the answer to this question is yes, the court must then inquire 13 whether the right violated was clearly established by asking 14 whether a reasonable officer could believe that the defendant s 15 actions were lawful. See Saucier v. Katz, 533 U.S. 194, 201 16 (2001). 17 18 19 20 21 22 First, a court If The traditional summary judgment approach should be used in analyzing the first step of the Saucier analysis: A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Where the facts are disputed, their resolution and determinations of credibility are manifestly the province of a jury. 23 Wall v. County of Orange, 364 F.3d 1107, 1110-1111 (9th Cir. 24 2004) (internal citations and quotations omitted). In the second 25 step, the court must ask whether it would be clear to a 26 reasonable officer that his conduct was unlawful in the situation 27 confronted. Although this inquiry is primarily a legal one, 28 13 1 where the reasonableness of the officer s belief that his conduct 2 was lawful depends on the resolution of disputed issues of 3 fact...summary judgment is not appropriate. Wilkins v. City of 4 Oakland, 350 F.3d 949, 956 (9th. Cir. 2003) (citing Saucier, 533 5 U.S. at 216 (Ginsburg J., concurring).) 6 C. 7 Civil Rights Claims Under 42 U.S.C. Section 1983 Section 1983 provides for liability against any person 8 acting under color of law who deprives another of any rights, 9 privileges, or immunities secured by the Constitution and laws 10 of the United States. S. Cal. Gas Co. v. City of Santa Ana, 336 11 F.3d 885, 887 (9th Cir. 2003)(quoting 42 U.S.C. § 1983). 12 rights guaranteed by section 1983 are liberally and beneficently 13 construed. Id. (quoting Dennis v. Higgins, 498 U.S. 439, 443 14 (1991). 15 civil action for deprivation of rights under the following 16 circumstances: 17 18 19 20 21 22 23 24 25 The Pursuant to 42 U.S.C. § 1983, Plaintiff may bring a Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 26 To establish personal liability in a § 1983 action, it is 27 enough to show that the official, acting under color of state 28 14 1 law, caused the deprivation of a federal right. Hafer v. Melo, 2 502 U.S. 21, 25 (1991) (internal quotations omitted). 3 officials sued in their personal capacity may assert personal 4 liability defenses, such as qualified immunity. Dittman v. 5 California, 191 F.3d 1020, 1027 (9th Cir. 1999). 5. 6 7 A. Public DISCUSSION § 1983 Fourth Amendment Excessive Force Claim: Causation of Leg Amputation 8 Plaintiff alleges that the individual Oakdale Police 9 Officers violated his Fourth Amendment rights and brings a § 1983 10 excessive force suit claiming their actions were a substantial 11 factor in causing the amputation of his injured right leg. 12 In the Court s previous Summary Judgment Order, Defendants 13 motion for summary judgment on Plaintiff s Fourth Amendment 14 excessive force claim was denied. The issue of whether the 15 proximate result of the Officers treatment of Plaintiff during 16 the arrest resulted in Bailey s leg amputation remained and is 17 addressed here. (Doc. 83, Order.) 18 The California Supreme Court has noted a preference for the 19 use of the term "legal" causation rather than "proximate" 20 causation, see Mitchell v. Gonzales, 819 P.2d 872, 879 (1991), 21 however, either way California courts incorporate the substantial 22 factor test into the causation analysis. Ileto v. Glock Inc., 349 23 F.3d 1191, 1206 (9th Cir. 2003) California has definitely 24 adopted the substantial factor test of the Restatement Second of 25 Torts for cause-in-fact determinations. Rutherford v. Owens26 Illinois, 941 P.2d 1203, 1214 (1997) 27 It is undisputed that immediately prior to his arrest, 28 15 1 Bailey was voluntarily intoxicated and involved in a high risk, 2 high speed motorcycle chase with the Officers that he initiated. 3 Bailey admits he consumed a number of alcoholic drinks in the 4 span of two hours prior to operating his motorcycle. 5 argue that Bailey s blood alcohol level was .22, substantially 6 above the legal limit. 7 an end when Bailey abandoned his motorcycle and attempted to 8 escape on foot. 9 conduct set into motion the events which caused Bailey s injury. 10 Bailey admits he voluntarily jumped over a fence to evade arrest. 11 The six foot fence had approximately a thirteen foot drop on the 12 other side. 13 to continue his flight. Defendants It is undisputed that the chase came to This lawless and highly hazardous course of Upon landing, Bailey injured his knee and was unable 14 Plaintiff s testified in his deposition that Defendants 15 dragged him the length of a football field to meet the ambulance 16 while he was screaming in pain and thus this was a substantial 17 factor in causing his leg amputation. 18 Proximate cause "limits the defendant's liability to those 19 foreseeable consequences that the defendant's negligence was a 20 substantial factor in producing." Mendoza v. City of Los Angeles, 21 66 Cal.App.4th 1333, 1342, 78 Cal.Rptr.2d 525, 530 (1998). 22 Whether an act is the proximate cause of injury is generally a 23 question of fact; it is a question of law where the facts are 24 uncontroverted and only one deduction or inference may reasonably 25 be drawn from those facts. Ileto, 349 F.3d at 1206 (quoting 26 Garman v. Magic Chef, Inc., 117 Cal.App.3d 634, 638, 173 27 Cal.Rptr. 20, 22 (1981)). 28 Plaintiff also submitted deposition testimony of trauma 16 1 surgeon Dr. Rossini, trauma director at Doctor s Medical Center 2 in Modesto who performed three surgeries on Plaintiff, two artery 3 grafts to attempt to salvage Plaintiff s leg and a third to 4 ultimately amputate the leg. 5 testified that Plaintiff first dislocated his knee from his fall, 6 which caused his knee to become unstable and this caused the 7 secondary right popliteal artery injury or the artery fracture. 8 (Doc. 85, Gohel Decl. II, Exhibit A, Rossini Depo., p. 36:13- 9 37:4.) In his deposition, Dr. Rossini Dr. Rossini testified that there are two types of pain, 10 the first associated with the dislocation of the knee and the 11 second from the artery injury. (Doc. 85, Rossini Depo., p. 74:1- 12 19.) 13 occurred, Plaintiff also had a frayed nerve indicating Plaintiff 14 had either stretching, extension, flexion of the extremity. 15 (Doc. 85, Rossini Depo., p. 47:9-13.) 16 unable to discern the mechanism which caused the physical injury. 17 (Doc. 85, Rossini Depo., p. 47:12-14.) 18 In the same area behind the knee where the artery injury Dr. Rossini, however is Dr. Rossini testified: Probably, and again in my opinion, 19 he had an injury there. 20 dragging or whether it was continued by the dragging, I can t 21 say, but probably so. 22 and of itself. (Doc. 85, Rossini Depo., p. 79:2-11.) 23 Whether it was made worse by the However, [t]he dragging is not enough in Plaintiff also has submitted two declarations by Dr. Kevin 24 Bozic, a physician, board certified in Orthopedic Surgery, 25 employed as a Professor of Orthopedic Surgery and an Attending 26 Orthopaedic Surgeon at the University of California, San 27 Francisco. 28 Dr. Rossini s deposition and states that his own opinion is In Dr. Bozic s supplemental declaration, he reviewed 17 1 consistent with Dr. Rossini s. 2 likely that Mr. Bailey dislocated his right knee when he jumped 3 or fell from the fence into the schoolyard. 4 opinion that the initial injury to his popliteal artery was 5 likely a result of the fall. (Doc. 85, Gohel Decl. II, Exhibit 6 B, Bozic Suppl. Decl., ¶ 3.) 7 intimal tear of the popliteal artery, and then he had walked, 8 been dragged for some considerable distance such as 100 yards, 9 this could have been a factor which contributed to further damage 10 I am of the opinion that it is I am also of the If Mr. Bailey had suffered an to the artery. (Doc. 85, Bozic Suppl. Decl., ¶ 6.) Defendants submit contrary expert testimony of Dr. 11 12 Blaisdell, Professor of Surgery and Chair of Surgery Eritus at UC 13 Davis School of Medicine, board certified in Vascular Surgery. 14 Dr. Blaisdell claims he has treated more popliteal artery 15 injuries than any surgeon in the United States. 16 Plaintiff s medical records pertaining to the popliteal artery 17 injury and the depositions of Officers Schimmel, Taylor, Savage, 18 Perez, Crozier and Semore, as well as depositions of Paramedics 19 Colleen Martinez, EMT Allen Berghorst, Dr. Michael Rossini, Alan 20 Stevenson, Bailey and Dr. Bozic s declaration, Dr. Blaisdell is 21 of the opinion that this type of injury commonly results in limb 22 amputation. (Doc. 87, Hamilton Decl., Exhibit A, Blaisdell Decl., 23 ¶ 3.) 24 with all reasonable certainty that the Officers management of 25 Mr. Bailey had nothing whatsoever to do with causing his injury 26 or the amputation of his leg, whether he was dragged, walked or 27 whether he had been evacuated by stretcher (waiting for the 28 latter would only have delayed the operation even longer). (Doc. After reviewing In contrast to Plaintiff s experts he states: I can say 18 1 87, Blaisdell Decl., ¶ 12.) 2 allegations that his leg was badly twisted during the police 3 transport from the site of the injury to the ambulance did not 4 result in the blockage of the artery, [i]t was the blockage of 5 the artery, the lack of blood flow to Mr Bailey s lower leg, and 6 the time that elapsed between the blockage and treatment for that 7 blockage that ultimately led to the amputation of Mr. Bailey s 8 leg. (Doc. 87, Blaisdell Decl., ¶ 11.) 9 Dr. Baisdell opines that Plaintiff s Undue emphasis should not be placed on the term 10 substantial. Rutherford v. Owens-Illinois, 941 P.2d 1203, 1214 11 (1997). 12 one, requiring only that the contribution of the individual cause 13 be more than negligible or theoretical. 14 (BAJI No. 3.77) tells juries that each of several actors of 15 forces acting concurrently to cause an injury is a legal cause of 16 the injury, regardless of the extent to which each contributes 17 to the injury. Id. at 1220. The substantial factor standard is a relatively broad A standard instruction 18 Plaintiff argues that if Defendant Officers had left 19 Plaintiff at the site of the fall and had the ambulance or the 20 gurney come to the location of the fall and immobilized 21 Plaintiff s leg, it could be determined whether the popliteal 22 artery was damaged enough at that point to cause the thrombosis 23 and the ultimate loss of Plaintiff s right leg. 24 contends that Defendants conduct in failing to leave Plaintiff 25 at the site of the accident, exacerbating his unstable knee 26 condition by dragging Plaintiff over a significant distance now 27 makes it impossible to determine the mechanism that caused the 28 ultimate thrombosis and subsequent amputation. 19 Plaintiff Plaintiff 1 asserts there is reason to believe that it is more likely than 2 not that the Defendant Officers actions were a substantial 3 factor in causing arterial damage which resulted in his leg 4 amputation. 5 determine with 100% certainty whether Plaintiff s fall was the 6 only substantial factor causing the leg amputation. Plaintiff suggests that it is impossible to Viewing the facts in the light most favorably to the non 7 8 moving party, there are triable issues of fact whether Defendant 9 Officers actions were a substantial factor in causing the 10 amputation of Plaintiff s leg. Defendants motion for summary judgment on the cause of 11 12 Plaintiff s injury pursuant to his § 1983 Fourth Amendment 13 excessive form claim is DENIED. 14 B. 15 Qualified Immunity of the Oakdale Police Officers in a § 1983 Fourteenth Amendment Deliberate Indifference to Medical Needs Claim 16 Qualified immunity grows out of the policy concern that few 17 individuals would enter public service if they risked personal 18 liability for their official decisions. Harlow v. Fitzgerald, 457 19 U.S. 800, 814 (1982). 20 incompetent or those who knowingly violate the law, Hunter v. 21 Bryant, 502 U.S. 224, 229 (1991) (quotations and internal 22 citations omitted), and "spare[s] a defendant not only 23 unwarranted liability, but unwarranted demands customarily 24 imposed upon those defending a long drawn out lawsuit. Siegert 25 v. Gilley, 500 U.S. 226, 232 (1991). 26 defense on the merits; it is an entitlement not to stand trial 27 or face the burdens of litigation, Mitchell v. Forsyth, 472 U.S. 28 511, 526 (1985), that may be overcome only by a showing that (1) The immunity protects "all but the plainly 20 Qualified immunity is not a 1 a constitutional right was in fact violated and (2) no reasonable 2 officer could believe defendants actions were lawful in the 3 context of fact-specific, analogous precedents. Saucier v. Katz, 4 533 U.S. 194, 201-202 (2001). 5 Plaintiff brings a § 1983 action and alleges that the 6 individual Oakdale Police Officers violated his Fourteenth 7 Amendment right to medical treatment by their intentional and 8 deliberate indifference to Plaintiff s obvious severe medical 9 condition by knowing he was injured and in pain and failing to 10 call the ambulance to his location, dragging him instead over 120 11 yards to meet the ambulance while in allegedly obvious 12 extraordinary pain. 13 Merging the Fourteenth Amendment standard with the qualified 14 immunity presumption results in a two step inquiry under which 15 Plaintiff must establish that (1) Defendant Officers were 16 deliberately indifferent to the medical needs of Plaintiff and 17 (2) that it would have been clear to a reasonable officer, 18 confronting the same circumstances, that the actions of the 19 officers were unlawful. See Saucier, 533 U.S. at 201-202. 20 21 i. A Dispute Exists as to Whether Defendants Failed to Summon Medical Care in Deliberate Indifference by Dragging and/or Assisting Bailey to Walk to the Ambulance 22 The Fourteenth Amendment due process clause requires 23 government officials to secure medical care for persons injured 24 in police custody. Maddox v. Los Angeles, 792 F.2d 1408, 1414-15 25 (9th Cir. 1986) (citing City of Revere v. Mass. Gen. Hosp., 463 26 U.S. 239, 244 (1983)). The Court has recognized that deliberate 27 indifference is egregious enough to state a substantive due 28 21 1 process claim in one context, that of deliberate indifference to 2 the medical needs to pretrial detainees... Sacramento v. Lewis, 3 523 U.S. 833, 834 (1998). 4 the Fourteenth Amendment due process clause, the eighth 5 amendment guarantees provide a minimum standard of care for 6 determining ... rights as a pretrial detainee, including ... 7 right to medical care. Jones v. Johnson, 781 F.2d 769, 771 (9th 8 Cir. 1986) (citing City of Revere, 463 U.S. at 244). 9 officer s constitutional duty can be fulfilled by either Although Bailey s claim arises under A police 10 promptly summoning the necessary medical help or by taking the 11 injured detainee to a hospital. Maddox, 792 F.2d at 1415 (citing 12 Revere, 463 U.S. at 245); see also Penilla v. City of Huntington 13 Park, 115 F.3d 707 (9th Cir. 1997) (an individual was moved by 14 police officers from his front porch into his locked house, then 15 the police officers canceled the prior 911 call for medical 16 assistance despite the belief that the individual required urgent 17 medical care. 18 medical assistance. Section 1983 claim against the officers was 19 viable, given the officers' affirmative acts in placing the 20 individual in mortal danger); Jones, 781 F.2d at 771 (Fourteenth 21 Amendment claim of extreme discomfort and pain suffered by an 22 inmate due to a delay in surgery sufficient for a serious medical 23 need claim). The individual died in the house without receiving 24 The standard used to determine whether denial of medical 25 care to a detainee rises to a constitutional level is that of 26 deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 104 27 (1976). 28 exhibited deliberate indifference to his serious medical needs. Plaintiff must provide evidence that Defendant Officers 22 1 Jones, 781 F.2d at 771. Plaintiff must provide evidence that the 2 Officers actually knew of and disregarded a substantial risk of 3 serious harm to his health and safety. Farmer v. Brennan, 511 4 U.S. 825, 837 (1994) (defining deliberate indifference). 5 determination of deliberate indifference involves an 6 examination of two elements: the seriousness of the prisoner's 7 medical need and the nature of the defendant's response to that 8 need. McGuckin, 974 F.2d 1050, 1060 (9th Cir. 1992) overruled on 9 other grounds. A The existence of an injury that a reasonable 10 doctor or patient would find important and worthy of comment or 11 treatment; the presence of a medical condition that significantly 12 affects an individual's daily activities; or the existence of 13 chronic and substantial pain are examples of indications that a 14 prisoner has a serious need for medical treatment. Id. 15 Deliberate indifference involves an official knowing of and 16 disregarding an excessive risk to inmate health or safety; the 17 official must both be aware of facts from which the inference 18 could be drawn that a substantial risk of serious harm exists, 19 and he must also draw the inference. Farmer, 511 U.S. at 837; 20 see Bryan County v. Brown, 520 U.S. 397, 410 (1997) 21 ("'[D]eliberate indifference' is a stringent standard of fault, 22 requiring proof that a municipal actor disregarded a known or 23 obvious consequence of his actions."). 24 stated that negligence, whether gross or simple, is insufficient 25 to prove a constitutional violation. Kennedy v. City of 26 Ridgefield, 440 F.3d 1091, 1093-94 (9th Cir. 2006); see also 27 Daniels v. Williams, 474 U.S. 327, 328 (1986) ("[T]he Due Process 28 Clause is simply not implicated by a negligent act of an official 23 The Supreme Court has 1 causing unintended loss of or injury to life, liberty, or 2 property.") 3 Plaintiff submits evidence that if believed is as follows: 4 (1) he told Defendant Officers he could not walk (Doc. 85, Bailey 5 Decl., Exhibit A, Bailey Depo., p. 53:4-54:10.); (2) Officers in 6 response told him he could walk and took turns dragging him (he 7 did not walk since one of his legs could not move) the length of 8 a football field to the ambulance (Doc. 85, Bailey Depo., p. 9 54:12-56:4.); (3) Plaintiff testified that he was screaming in 10 pain during the time he was dragged by the Officers (Doc. 85, 11 Bailey Depo., p. 56:13-57:6) and felt a twisting when he was 12 dragged which caused him extreme pain. (Doc. 85, Bailey Depo., p. 13 62:21-64:8.) 14 deposition testimony. 15 states He seemed irrational with pain. 16 also incoherent and extremely uncooperative. (Doc. 85, Gohel 17 Decl. II, Exhibit C, Martinez Depo., p. 27:18-23.) 18 Plaintiff submits Paramedic Colleen Martinez s Ms. Martinez who responded to the 911 call He was screaming and Plaintiff also submits deposition testimony of eyewitness 19 Alan Stevenson. While Mr. Stevenson can no longer fully verify 20 his statements made to Plaintiff s private investigator Gary 21 Ermoian (shortly after the incident) in which he stated he heard 22 Plaintiff scream in pain while being dragged, in his deposition 23 testimony (of July 2007) Mr Stevenson testified that he heard 24 Plaintiff yelling when he was being carried, and the yelling was 25 either out of pain or anger. (Doc. 85, Gohel Decl. II, Exhibit D, 26 Stevenson Depo., p. 29:9-30:15.) 27 evidence, the declaration of Kenny Wright who was a witness to 28 the incident. (Doc. 73, Ermoian Decl., Exhibit A, 24 Bailey offers as further Wright Decl.) 1 According to Mr. Wright, Bailey was screaming out in pain at the 2 scene where Plaintiff fell. (Doc. 73. Wright Decl.) 3 And finally (4) Defendant Officers could have easily 4 summoned an ambulance or gurney to the location where Plaintiff 5 fell, but chose not to, despite easy access. 6 Higgins1 testified in her deposition that she heard an officer 7 request an ambulance to the location of the fall and then a few 8 seconds later, another officer cancelled that request and stated 9 they would bring the suspect to the ambulance. (Doc. 85, Gohel Witness Shawna 10 Decl. II, Exhibit D, Higgins Depo., p. 10:4-12:58.) 11 offers evidence through Shelly Thomas, the day custodian of 12 Oakdale Junior High School, that it was feasible for the gate to 13 be opened for an ambulance to be driven to the location where 14 Plaintiff fell on the night of the arrest. 15 Bailey also Bailey contends that Defendants conscious decision to 16 escort him to the ambulance rather than to have the ambulance 17 drive to Plaintiff s location was unreasonable and is an 18 inference in his favor that they intended to cause Plaintiff 19 unnecessary pain and to exacerbate his injury. 20 Martinez confirmed in her deposition that the ambulance at the 21 scene of the accident was equipped with a gurney that could be 22 folded up and down and taken to the site of the fall, if 23 requested by police officers. (Doc. 85, Martinez Depo., p. 35:13- 24 19, p. 36:13-21.). 25 Paramedic Colleen Defendant Officers however, state that they did not know of 26 27 28 1 Ms. Higgins is a retired locomotive engineer for Union Pacific Railroad, and a police scanner enthusiast. (Doc. 85, Higgins Depo., p. 7:14-28, p. 8:7-9:24.) 25 1 the seriousness of Plaintiff s injury. Officer Brian Schimmel 2 and Sergeant Darren Semore who both were present at the scene of 3 the accident, testified in their depositions that they asked 4 Plaintiff if he could walk or was hurt but Plaintiff either did 5 not respond or Plaintiff responded with slurred speech. (Doc. 49, 6 Schimmel Decl., Exhibit B, ¶ 8 and Semore Decl., Exhibit C, ¶ 9.) 7 Sergeant Semore testified that he then asked Plaintiff again if 8 he could walk and Plaintiff, visibly intoxicated, responded 9 affirmatively. (Doc. 49, Semore Decl., ¶ 9.) Officer Schimmel, 10 Officer Dan Taylor and Sergeant Semore all testified that they 11 did not know of or have reason to believe the extent of 12 Plaintiff s injury was anything other than a sprain or twist type 13 injury nor did they have reason to believe the injury was so 14 serious Plaintiff could not walk. (Doc. 49, Taylor Decl., Exhibit 15 A, ¶ 10, Schimmel Decl., ¶ 10, Semore Decl., ¶ 12.) 16 Officer Shimmel claims he immediately called an ambulance 17 to be dispatched to the Officers location because Bailey was not 18 moving and he had complained of pain in his right leg. 19 disputes these factual allegations. 20 that Sergeant Semore inspected Bailey s leg with a flashlight at 21 the scene. 22 could see no visible signs of injury such as swelling or blood 23 through the jeans. 24 could walk and Bailey did not answer him, but Bailey disputes 25 Defendants version that Semore had to tell Bailey to focus and 26 Bailey responded that he could walk. 27 28 Bailey Defendants further claim Bailey was wearing jeans and boots. Sergeant Semore Sergeant Semore alleges he asked Bailey if he Defendants also claim that Sergeant Semore ordered Officers to assist Bailey to the ambulance. 26 According to Defendants, 1 Bailey was helped up and was assisted to the fence area to meet 2 the ambulance and was transported to Oak Valley Hospital. 3 Defendants contend that Bailey was limping but was not 4 complaining of any pain. 5 While the Officers were assisting Bailey to the ambulance, 6 Sergeant Semore states that he walked behind Plaintiff and again 7 shined his flashlight on Bailey s legs and feet to look for any 8 visible signs of injuries to Plaintiff s legs. 9 did not see any visible signs of injuries to Plaintiff s legs but Sergeant Semore 10 he did see Bailey walking with a limp. 11 also claim, contrary to Bailey s version, that they bore most of 12 his weight while they were assisting Bailey. 13 The Defendant Officers Defendant Officers also argue that EMT Berghorst and 14 Paramedic Martinez were also not able to identify the seriousness 15 of Plaintiff s injury. 16 Dr. Berliner, the treating physician at Oak Valley Hospital took 17 two hours to diagnose Plaintiff s condition and that Dr. Rossini 18 stated that a dislocated or sprained knee rarely has aterial 19 damage. (Doc. 85, Rossini Depo., p. 75:9-25.). 20 In addition they cite to evidence that Bailey rejoins however, that he was visibly in pain and that 21 he did in fact inform the Officers that he was in pain. 22 also claims that he screamed in pain when escorted towards the 23 ambulance. 24 Officers to require him to walk towards the ambulance while he 25 was in such pain. 26 Bailey Bailey maintains that there was no need for the Plaintiff s evidence raises a triable issue of fact whether 27 Defendant Officers were deliberately indifferent to Plaintiff s 28 serious medical needs and intended to inflict pain and suffering 27 1 to an obviously injured suspect based on their knowledge of his 2 fall and exclamation of pain, all of which is disputed. 3 inferences from the evidence submitted must be drawn in 4 Plaintiff s favor. 5 Defendant Officers ignored Plaintiff s statements that he was 6 hurt and could not walk, Defendant Officers dragged, and did not 7 assist Plaintiff by bearing his full weight in taking Plaintiff 8 to the ambulance. 9 in pain while he was taken to the ambulance, when the ambulance The If Plaintiff s testimony is believed, Defendant Officers heard Plaintiff screaming 10 or in the alternative a gurney was available to pick Plaintiff up 11 at the accident site. 12 flexion or torsion to the knee to exacerbate the injury. 13 deliberate indifference to a plaintiff s medical claim could be 14 found. 15 to a prisoner's pain or possible medical need in order for 16 deliberate indifference to be established. McGuckin, 974 F.2d at 17 1060. 18 indifferent in a substantial way, Jones v. Johnson, 781 F.2d 19 769, 771 (9th Cir. 1986), and whether it was clear to the 20 Defendant Officers that Plaintiff suffered from a serious 21 medical need, Id., is disputed, whether Bailey s intoxicated 22 state justified the Defendant Officers actions and whether 23 Bailey was screaming in pain is also disputed. The dragging or walking could cause A A defendant must purposefully ignore or fail to respond Whether the Defendant Officers were deliberately 24 Defendants motion for summary judgment on Plaintiff s § 25 1983 Fourteenth Amendment deliberate indifference to medical care 26 claim is DENIED. 27 ii. Qualified Immunity 28 In order to be entitled to qualified immunity, the officers 28 1 must show that their discretionary conduct did not violate any 2 clearly established right of which a reasonable person should 3 have known. Penilla v. City of Huntington Park, 115 F.3d 707, 4 709 (9th Cir. 1997). 5 not proper unless the evidence permits only one reasonable 6 conclusion. 7 facts, the case must go to the jury. Munger v. City of Glasgow 8 Police Dept., 227 F.3d 1082, 1087 (9th Cir. 2000)(quoting LaLonde 9 v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000)). Summary judgment on qualified immunity is Where conflicting inferences may be drawn from the 10 Defendant Officers have the burden to show that a reasonable 11 officer could have believed, in light of the settled law, that he 12 was not violating a constitutional or statutory right. Id. 13 (quoting Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996)). 14 Plaintiffs cite to no case law on this issue. 15 only to case law that establishes that peace officers have no 16 duty to administer CPR. See Revere v. Mass. Gen. Hosp., 463 U.S. 17 239, 244-45 (1983) ( The Due Process Clause...require[s] the 18 responsible government...agency to provide medical care to 19 persons...who have been wounded while being apprehended by the 20 police...We need not define, in this case [the city s] due 21 process obligation to pretrial detainees or to other persons in 22 its care who require medical attention. 23 may be, [the city] fulfilled its constitutional obligation by 24 seeing that [the arrestee] was taken promptly to a hospital that 25 provided the treatment necessary for his injury. ) 26 argue that the actions taken by Officers, even if mistaken, were 27 reasonable. 28 Defendants cite Whatever the standard Defendants There is no dispute that Officers summoned an ambulance to 29 1 address Plaintiff s injury from his fall in order to receive 2 medical attention. 3 no demonstration of malice or ill-will on the part of the 4 Defendant Officers and claim that no reasonable person would 5 believe that Plaintiff would ultimately lose his leg. 6 claim they acted reasonably in the face of dealing with a highly 7 combative and intoxicated individual. 8 established, the court must determine whether the defendant s 9 conduct was objectively legally reasonable given the Defendant Officers also argue there has been Defendants If the right is clearly 10 information possessed by the defendant at the time of his or her 11 conduct. Lawrence v. U.S., 340 F.3d 952, 955 (9th Cir. 12 2003)(citing Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). 13 [Q]ualified immunity shields agents... if a reasonable officer 14 could have believed [the action] to be lawful, in light of 15 clearly established law and the information the [arresting] 16 officer possessed. Hunter v. Bryant, 502 U.S. 224, 227 17 (1991)(quoting Anderson, 483 U.S. at 641.) 18 Nevertheless, the evidence must be viewed in a light most 19 favorable to the nonmoving party. Anderson, 477 U.S. at 255. 20 Plaintiff s testimony that he was screaming in pain while being 21 dragged to the ambulance and was limping and screaming in pain, 22 not anger, while being dragged a football field length in 23 distance, should alert a reasonable police officer that Plaintiff 24 has suffered a severe injury that required immediate medical 25 assistance and that Plaintiff should have been immobilized and 26 not moved until medical personnel could assess the damage. 27 to Plaintiff s outrageous and unlawful conduct, the Defendant 28 Officers, if Plaintiff s evidence is believed, could have been 30 Due 1 irritated or angry with Plaintiff and their treatment of him as 2 alleged could have manifested a hostile or vengeful state of mind 3 toward Plaintiff based on his grossly reckless conduct in 4 engaging in a high speed chase. 5 believed, a reasonable officer would not have moved Plaintiff 6 from the point of his fall or would have immobilized him and 7 taken Plaintiff on a gurney or summoned the ambulance to 8 Plaintiff s location. 9 inflict plain or exacerbate a known injury to an injured suspect. 10 If all Plaintiff s evidence is No reasonable officer would intentionally The duty not to do so is clearly established. 11 Defendants motion for summary judgment on Plaintiff s § 12 1983 Fourteenth Amendment deliberate indifference to medical care 13 needs on qualified immunity grounds is DENIED. 14 6. 15 CONCLUSION Defendants motion for summary judgment on failure of 16 17 Bailey to provide evidence of proximate cause under his § 1983 18 Fourth Amendment claim is DENIED. Defendants motion for summary judgment on Bailey s § 1983 19 20 Fourteenth Amendment medical treatment claim is DENIED, including 21 on qualified immunity grounds. 22 23 IT IS SO ORDERED. 24 Dated: 474bb4 January 30, 2008 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 25 26 27 28 31

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