George v. Edholm, No. 11–57075.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: W. FLETCHER
• Citation: 752 F.3d 1206
• Parties: Clifford GEORGE, Plaintiff–Appellant, v. Thomas W. EDHOLM, individually in his capacity as an M.D.; Greg Freeman, individually in his capacity as a PD Officer; Daryll Johnson, individually in his capacity as a PD Officer, Defendants–Appellees.
• Docket Number: No. 11–57075.
• Decision Date: 28 May 2014

752 F.3d 1206

Clifford GEORGE, Plaintiff–Appellant,
v.
Thomas W. EDHOLM, individually in his capacity as an M.D.; Greg Freeman, individually in his capacity as a PD Officer; Daryll Johnson, individually in his capacity as a PD Officer, Defendants–Appellees.

No. 11–57075.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted June 4, 2013.
Filed May 28, 2014.

[752 F.3d 1208]

Michael B. Kimberly (argued) and Charles Alan Rothfeld, Mayer Brown

[752 F.3d 1209]

LLP, Washington, D.C., for Plaintiff–Appellant.

Thomas W. Edholm, Redding, CA, pro se.

Roger A. Colvin and Sharon Apodaca (argued), Alvarez–Glasman & Colvin, City of Industry, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding. D.C. No. 2:06–cv–00200–GW–AJW.
Before: KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges, and BARBARA M.G. LYNN, District Judge.^*

OPINION
W. FLETCHER, Circuit Judge:

Clifford George appeals a grant of summary judgment to Pomona Police Officers Greg Freeman and Daryll Johnson. Acting pro se, George sued Freeman, Johnson, and a medical doctor and two nurses under 42 U.S.C. § 1983, alleging that they violated his rights under the Fourth and Fourteenth Amendments when the doctor, forcibly and without consent, removed a plastic baggie containing cocaine base from George's rectum. We reverse in part, affirm in part, and remand for further proceedings.

I. Background A. Factual Summary

According to a police report written by Officer Freeman, on March 13, 2004, George and another man were standing in the front courtyard of an apartment complex in Pomona, California. Freeman and his partner were patrolling the area, which they knew to be a hangout for gang members and drug dealers. They spotted the two men, got out of their police cruiser, and approached them. George started to run “towards the front gate, as if he was going to flee.” Freeman ordered George to stop, and George complied. George told Freeman he was on parole for an armed robbery conviction.

Officer Freeman and two other officers conducted a parole search of George's apartment. Inside, they encountered George's brother, Jeremiah English. Freeman found a .380–caliber semi-automatic pistol in a hallway closet. Freeman arrested George for violating his parole by living in an apartment with a firearm, English for being a gang member with a firearm, and George's companion for loitering. Freeman and his partner took all three men to the Pomona city jail.

Freeman and Johnson took George to the “strip tank” for a strip search. Freeman wrote in his report that George removed his clothes, but “whe[n] we asked him to turn around, he immediately started shaking and went to the ground as if he was possibly having a seizure.... [W]hen he was on the ground with his right hand he reached under his body and started pushing his finger in his anus attempting to conceal an item, of what appeared to be some plastic baggie. Due to my training and experience in the field of narcotics, myself and Corporal Johnson believed it was a bag of cocaine.”

Officer Freeman testified in his deposition that he did not believe that George was having a seizure, “[b]ecause he was concealing the narcotics or cocaine that we recovered out of his rear end.” Freeman estimated that he had encountered “similar scenarios ... where someone undergoing a strip search either faked a seizure or attempted to conceal things in their rectum

[752 F.3d 1210]

during the strip search ... five times—four to five times.” Officer Johnson testified similarly in his deposition. He testified that in his experience it is “very common for people to carry [crack cocaine or other contraband] between their butt cheeks.” He did not believe George was having a seizure. Rather, he believed that George “was faking having a seizure to cover ... up” his attempt to conceal a plastic baggie of cocaine base in his anal cavity. He testified, “[I]t was obvious to me that that whole fake medical situation was a distraction so he could shove a baggie in his anus.”

An unspecified person at the jail called for paramedics. George testified in his deposition that “Freeman kept hollering [to the paramedics], yelling that I swallowed something and he stuck something up his anal and we need to get it out.” Officer Freeman testified, “I think I told [the paramedics] that he—that he possibly had a seizure and that we needed to get him medically cleared for booking.” He testified further that the paramedics took George to the hospital “to save his life.” Officer Johnson testified differently. When asked if “there was anything medically wrong” with George when he took him to the hospital, Johnson answered, “I did not think so.” He testified that he and another officer took George to the hospital in a police vehicle. Hospital records state that police officers took George to the hospital, and that George was in police custody when he arrived. Johnson testified that Freeman came to the hospital sometime later. However, George testified that “Freeman and Johnson took me to the hospital.”

Freeman was asked about other instances in which a person was taken to the hospital because of cocaine base concealed in the rectum. He responded:

Specifically, I remember a doctor had one on a Porta–Potty. Another one, I believe the doctor had to give him a sedative or something to relax the body.... I think the doctor used forceps to pull it out of his rectum.

With respect to the instance where forceps were used, Freeman did not say whether the person had consented to the procedure. Freeman did not describe any case in which the person had been intubated or had his bowels evacuated.

Johnson testified that on “six or eight” previous occasions he transported to the hospital people who had inserted into their rectums baggies containing cocaine. He testified:

I know, in some instances, they were given some type of a pill or a drink, maybe a laxative of some type. On another occasion, there was a laxative like a suppository. Another time I waited in the intensive care unit with somebody that had cocaine in their rectum, and it was all up to the doctor.

Johnson testified that in all but one of the instances, the baggie was intact when it emerged. Johnson described the one instance in which the baggie had not been intact. In that instance, the person had been taken to intensive care because of a high heart rate. At one point, Johnson and another officer had actually seen, “barely protruding,” the “clear plastic and the actual white cocaine,” but by the time they got to the hospital it was no longer visible:

The doctor used a type of scope. I believe the person's heart rate was very high and the doctor couldn't find it, and we told him that we had actually seen it, the both of us. And so I believe the doctor was—had him taken up to ICU because of his heart rate, and he was monitored. He was given suppository or, you know, some type of laxative, and eventually the laxative worked and the baggie of cocaine was recovered.

[752 F.3d 1211]

The recovered baggie was not intact when Johnson saw it, but he testified, “I don't know if it came out not intact or if it was ripped by the suspect.” When asked if any of the six or eight people had the cocaine “removed surgically,” Johnson answered, “No, I have never seen that.” But he had seen “some type of device,” which he described as “not really forceps,” used to pull out a baggie or baggies.

Acting pro se, George sent Requests for Admission to Officers Freeman and Johnson. They provided identical answers to a Request concerning the paramedics' evaluation. They both wrote, “The Los Angeles County Fire Department Paramedics informed me that plaintiff was not having a seizure.” In his deposition, Freeman backtracked from this answer. In response to the question, “Did the paramedics convey to you any information about Mr. George's medical condition?” Freeman testified, “I don't remember anything specifically.”

Officers Freeman and Johnson both answered “Admit” to the following Request: “Admit that, when you arrived at said medical hospital, you informed Dr. Edholm, (the treating [doctor],) that plaintiff appear[ed] to have swollen some drugs and/or that there may be some in his rectum.” In their depositions, they both backtracked. During Freeman's deposition, the following exchange occurred:

Q: You didn't say—you didn't tell anyone anything about him swallowing drugs through his mouth?

...

A: I don't remember telling anybody about anything....

...

Q: As you sit here today, do you recall telling Dr. Edholm that the patient may have—or that Mr. George may have swallowed some drugs or “swollen,” any sort of variation of that word?

A: No.

Johnson testified, “I don't recall ever saying something like ‘swollen’ or ‘swallowed drugs.’ I don't recall that in this incident.”

Hospital records indicate that the “police department” told intake personnel that George had swallowed cocaine, had put cocaine into his rectum, and had possibly had a seizure. The hospital's Emergency Department Triage Record, filled out when George arrived at the hospital, stated, “Per P.D.: pt. ingested cocaine & put some into his rectum. Possibly had a seizure.”

Officer Johnson testified that George was taken to a room at the hospital, placed on a gurney, and restrained with straps. He testified that nurses initially evaluated George, and that Dr. Thomas Edholm, an emergency-room physician, arrived a short time later. George wrote in his verified complaint:

The defendant Edholm was then informed by the defendant's [sic] Johnson & Freeman, that there exist a medical emergency ... that plaintiff may have swallowed drugs. “We need it out now.”

An intake form lists George's blood pressure as 180/108, his pulse as 108, his respiratory rate as 18, his temperature as 98, and his condition as “stable.” The hospital's triage record, prepared at roughly the same time, lists his breathing...