Caldwell v. City of Selma, Case No. 1:13-cv-00465-SAB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date29 August 2014
Docket NumberCase No. 1:13-cv-00465-SAB
PartiesKENYA DARRICK CALDWELL, Plaintiff, v. CITY OF SELMA, et al., Defendants.

CITY OF SELMA, et al., Defendants.

Case No. 1:13-cv-00465-SAB


August 29, 2014


(ECF Nos. 24-29, 35, 38, 39, 40)

Plaintiff Kenya Darrick Caldwell, an incompetent person, by Ever Jean Kelley, his conservator, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 28, 2013. Currently before the Court is Defendants' motion for summary judgment filed August 21, 2014.

The Court heard oral arguments on August 28, 2014. Counsel M. Greg Mullanax appeared for Plaintiff and counsel David M. Overstreet and Rachelle Taylor Golden appeared for Defendants. Having considered the moving, opposition and reply papers, the declarations and exhibits attached thereto, arguments presented at the August 28, 2014 hearing, as well as the Court's file, the Court issues the following order.1


Plaintiff suffered a traumatic brain injury after he was attacked by his stepfather on January 1, 1999. (First Am. Compl. ¶ 13.) Petitioner's mother, Ms. Kelly, filed for conservatorship in Fresno County Superior Court and was appointed as conservator of Plaintiff's

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person and estate on March 25, 2003. (Id. at ¶¶ 16, 17.)

Plaintiff was arrested on February 10, 2006, and filed the complaint in this action on March 28, 2013.2 On August 21, 2103, Plaintiff filed a first amended complaint against Defendants City of Selma ("City"), Chief Thomas H. Whiteside ("Chief Whiteside"), and Steve Burgamy. Plaintiff brings this action against Defendant Burgamy alleging violations of the right to be free from unreasonable searches and seizures, due process of law, excessive force, equal protection, and freedom from interference with Plaintiff's zone of privacy;3 against Defendants City and Chief Whiteside alleging they had knowledge of a pattern and practice of these violations and did not act to prevent such violations.

Defendants filed a motion for summary judgment on July 25, 2014. Plaintiff filed an opposition to the motion for summary judgment on August 14, 2014. Defendants filed a reply on August 19, 2014.


Under Federal Rule of Civil Procedure 56, "[a] party may move for summary judgment ... if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case..." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11.


1. In February 2006, Plaintiff lived in Chowchilla, with his mother. Plaintiff has a history of mental instability and is prescribed medication to control raging fits.

2. After the incident, Plaintiff told investigating officers that he ran away from home. He had been reported as a missing person days before the February 10, 2006, incident. Plaintiff had not taken his medication during the time he was missing.

3. At about 7:59 p.m., on February 10, 2006, a citizen called to report a suspicious person reported as a "black gentleman" moving between cars. The citizen reported that there had been previous burglaries and tires stolen in the area.

4. At about 8:01 p.m., Defendant Burgamy was dispatched to the 3400 block of Jordan for a "suspicious BMA."

5. Defendant Burgamy was dressed in police uniform and drove a marked patrol car as he pulled up to the site of the incident.

6. Plaintiff was compliant and did not appear to be on drugs or intoxicated when Defendant Burgamy initially spoke with him.

7. After having observed a black male adult, Defendant Burgamy arrived in a marked patrol car on scene at approximately 8:03 p.m. Defendant Burgamy asked Plaintiff his name to which Plaintiff responded with, "John" "Jake" or "Jacob" "Winston". Plaintiff stated that his name was "John Brown." Defendant Burgamy suspected the names were false.

8. Defendant Burgamy requested and Plaintiff gave permission to search Plaintiff for weapons for their mutual safety. After requesting and receiving Plaintiff's permission to extract objects from Plaintiff, and laying them on the hood of the patrol car, Defendant Burgamy began

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to go through Plaintiff's wallet.4

9. As Defendant Burgamy was going through Plaintiff's items, Plaintiff attacked Defendant Burgamy, striking him and biting his face causing a wound. Defendant Burgamy felt pressure on his handgun which he perceived as an attempt by Plaintiff to obtain his handgun. During the scuffle, Defendant Burgamy fired one shot striking Plaintiff in the left side of his back.5

10. At 8:10 p.m., Defendant Burgamy radioed that he needed backup. Almost immediately, Defendant Burgamy radioed that he had discharged his weapon and requested an ambulance.

11. The event happened quickly and Plaintiff does not recall the specific details of the incident.

12. Plaintiff attacked Defendant Burgamy by running and swinging at and biting him; intending to knock Defendant Burgamy out and escape.

13. Plaintiff claimed that Defendant Burgamy struck him twice in the forehead with his hands, and Plaintiff then bit Defendant Burgamy.

14. Plaintiff admits that he bit Defendant Burgamy, but claims that it was not hard enough to leave a mark.

15. Plaintiff admitted causing the bite mark on Defendant Burgamy's face.

16. Plaintiff claims that he was biting Defendant Burgamy when he was shot.

17. To Defendant Burgamy, Plaintiff appeared aggressive with his hands positioned

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as if about to make a tackle just before he charged Defendant Burgamy. Plaintiff does not have a recollection of the details of charging or running at Defendant Burgamy.

18. Just before pulling the trigger, Defendant Burgamy felt that Plaintiff was seriously trying to hurt, or was trying to kill him.6

19. Defendant Burgamy believed that Plaintiff had previously tried to get his handgun, and if Plaintiff was successful, he would shoot Defendant Burgamy.

20. One round from a .40 caliber duty weapon was fired by Defendant Burgamy, and only one matching bullet casing was found at the scene.

21. After firing the shot, Defendant Burgamy notified dispatch of having done so, and requested ambulance.

22. Shortly after the gun was fired both Selma Police and Fresno County Sheriff officials arrived, investigating the incident.

23. The bullet which was just under the surface of Plaintiff's skin was removed under local anesthesia as an outpatient procedure.

24. Lisa Gamoian, Chief Deputy District Attorney, Homicide Unit, of The Office of the District Attorney for Fresno County, found that there were grounds for self-defense under the circumstances.

25. Plaintiff was arrested for violation of Penal Code sections for causing injury to Defendant Burgamy.

26. Peace Officer Standards and Training (P.O.S.T.) is recognized as the authority that governs the training of police officers in California. These professional standards are similar to other states across the nation.7

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27. The Selma Police Department is a fully certified law enforcement agency consistent with the minimum standards set forth by P.O.S.T. Officers with the Selma Police Department are required to attend a P.O.S.T. certified academy. They receive ongoing training through field training programs, on-the-job training, advanced officer courses, and various classes and seminars offered throughout the State of California. The Selma Police Department has had a training unit that ensures Selma police officers receive training in compliance with P.O.S.T. The training provided by the Selma Police Department with regard to use of force and use of deadly force is in compliance with P.O.S.T. standards.

28. Prior to February 10, 2006, Defendant Burgamy had attended a P.O.S.T. certified police academy and received P.O.S.T. certification.

29. Consistent with...

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