Nicholson v. City of Bakersfield

• Decision Date: 19 December 2011
• Docket Number: 1:08-CV-1168 AWI SKO
• Parties: AMYRA NICHOLSON, C.W. a minor by her guardian ad litem Amyra Nicholson, R.S.W. a minor by his guardian ad litem Amyra Nicholson, and BRITTANY WILLIAMS, Plaintiffs, v. CITY OF BAKERSFIELD, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

AMYRA NICHOLSON, C.W. a minor by her guardian ad litem Amyra Nicholson,

R.S.W. a minor by his guardian ad litem Amyra Nicholson, and BRITTANY WILLIAMS, Plaintiffs,

v.CITY OF BAKERSFIELD, et al., Defendants.

1:08-CV-1168 AWI SKO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: December 19, 2011

ORDER ON DEFENDANTS'

MOTION FOR SUMMARY

JUDGMENT

(Doc. No. 51)

This civil rights lawsuit arises from the search of various individuals, including minors, who were present during the search of a person who was on parole. The active complaint is the Third Amended Complaint. Plaintiffs allege state law claims for assault, battery, false imprisonment, and intentional infliction of emotional distress,¹ and federal claims under 42 U.S.C. § 1983 for violation of the Fourth Amendment (unreasonable search and seizure and excessive force) and Monell liability. Defendants now move for summary judgment. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

FACTUAL BACKGROUND²

On June 29, 2008, members of the City of Bakersfield ("the City") police department andthe Kern Narcotics Enforcement Team ("KNET") went to 3204 Cornell Street in Bakersfield, California for the purpose of conducting a parole search. See DUMF 1. Defendant Richard Dossey ("Dossey") received information that Plaintiff Amyra Nicholson ("Nicholson") was selling narcotics from a business establishment.³ See PRDUMF 1. Dossey discovered during his investigation of this tip that Marcus Miles ("Miles") lived at 3204 Cornell and was on parole. See id. Miles was on parole for violation of Penal Code § 4573.8 (bringing illegal narcotics into a jail), and had been on parole for violation of Penal Code § 12021(a)(1) (felon in possession of a firearm). See DUMF 2. Miles was also a documented member of a criminal street gang. See DUMF 3. Dossey did not consider obtaining a search warrant in relation to the allegation that Nicholson was selling drugs. See PRDUMF 1.

Police officers arrived in the neighborhood and parked their cars in such a manner as to not alert anyone at 3204 Cornell of their presence. See DUMF 4. Dossey, who was followed by other officers to assist him, approached 3204 Cornell and observed a male lying on the ground underneath the front end of a brown car that was parked in front of the residence. See DUMF's 5, 7. Dossey also observed a white car and a pickup truck in front of the residence, and observed a male and female standing about one foot from one another and leaning against the bed of the truck. See DUMF 6. When they were within 20 feet of the truck, Dossey recognized that the male leaning against the truck was Miles, based on photos that Dossey had seen. See DUMF 8. Dossey also recognized the female as Nicholson from photos he had seen, and later confirmed that the female was Nicholson. See DUMF 9; PRDUMF 9. As the officers approached, Nicholson's purse was on her shoulder. See PRDUMF 10.⁴

Officer Ursery made contact with Miles and placed him in handcuffs for the safety of the officers. See DUMF 11. Dossey detained Nicholson at the scene as officers ordered her to "stop, freeze." PRDUMF 12. Dossey and Nicholson walked over to the neighbors yard, and Dossey instructed Nicholson to sit down on the curb. See Nicholson Depo. 50:12-23. Nicholson initially refused to sit down because the curb was wet and muddy. See id. at 50:23-51:5. Dossey told Nicholson that she did not have a choice, and that if she refused, he would take her to jail and have Child Protective Services take her children. See id. at 51:6-17. In response, Nicholson sat down. See id. Dossey then told Nicholson that he needed to search her purse, but Nicholson refused. See id. at 53:19-21. Dossey said that he needed to search the purse for weapons, but Nicholson again refused and said that she had no weapons. See id. at 52:21-53:1; see also DUMF 54. Dossey declared and testified that he was concerned that Nicholson had some type of weapon or contraband in her purse.⁵ See DUMF 15. Dossey then spoke to another officer,⁶ walked back to Nicholson, leaned down, and told Nicholson that a female officer would be arriving and that everyone was going to be searched, the purse was going to be searched, and Nicholson's children were going to be searched. See Nicholson Depo. 54:1-12. Nicholson said that Dossey could not do that, but as she was protesting, Dossey shoved Nicholson. See id. at 54:13-16. As Dossey shoved and knocked Nicholson back into the grass and mud, he snatched Nicholson's purse from her. See id. at 54:18-55:6. Once Dossey had taken control of the purse, he negated any concerns that he had regarding officer safety in relation to weapons in the purse. See Suppression Hearing Transcript 23:21-24:4. Dossey then took the purse and walked back over to the yard at 3204 Cornell. See Nicholson Depo. at 62:14-15. Dossey opened the purse, emptied the purse upside down, and shook the purse so that the contents of the purse fell to the yard. See id. at 62:17-22. Dossey found inter alia a black cell phone, a blue notebook with "pay and owe" items, one plastic bag that contained numerous 1" x 1" plastic bags with an "S" logo onthe side, two razors, $300, and a clear plastic bindle with a white powder believed to be methamphetamine. See PRDUMF's 18, 23. Dossey picked up the bag of methamphetamine and said, "this is what I was looking for." See Nicholson Depo. 63:1-13.⁷

As other officers approached the front of 3204 Cornell, several young people (i.e. Plaintiffs Brittany Williams ("Williams") and R.S.W.) exited the residence, and were later identified as Nicholson's children. See DUMF 21; PRDUMF 21. Plaintiff C.W. was inside the home asleep, but at some point came outside and was placed with the Williams and R.S.W. The names and ages of the children were obtained, but they were not handcuffed at any time. See DUMF 22; PRDUMF 22. Officers were watching over the children to ensure that the children would not leave. See Dossey Depo. 32:8-11; Pflugh Depo. 33:11-34:10.

Dossey then confirmed with Miles that he was residing at 3204 Cornell, and directed the other officers to conduct a parole search of the residence. See DUMF 24. Miles was in fact on parole at the time of the search, and one of Miles's parole conditions was that he was subject to search without a warrant. See DUMF 50. Nicholson was married to Miles at the time of the search, and all of the Plaintiffs were residing with Miles at 3204 Cornell. See DUMF's 51, 52.

At some point, Officer Lynn Martinez ("Martinez") arrived at the scene. A sergeant had radioed for a female officer to respond to the scene. See PUMF 13. When Martinez arrived, it appeared to her that Dossey was "more or less in charge of what was going on, so he directed [her] as to what he needed [her] to do." Martinez Depo. 24:1-6. Dossey directed Martinez to conduct a search of Nicholson, and directed her to the other females that were present. See id. at 29:13-18. Martinez testified that Dossey requested that she conduct "a search of a - - a patdown search of Amyra Nicholson." Id. Martinez testified that she had very little recollection of the events in question, she recalls conducting at least one other search, but cannot recall any specifics such as where the searches were performed. See id. at 36:7-38:14. Martinez did testify, however, that she did not remove Nicholson's clothing. See id. at 41:10-22.

Nicholson testified that a female police officer took her inside the house and inside the bathroom. See Nicholson Depo. 75:3-4. In the bathroom, the officer turned Nicholson around, spread Nicholson's legs apart, pushed Nicholson's head slightly forward, and then raised Nicholson's shirt up. See id. at 75:5-12. Nicholson said that she did not have underclothes on, but the officer continued to raise Nicholson's shirt. See id. at 75:12-19. Nicholson told the officer that the officer could not "do that," and the officer replied that this had nothing to do with her (the officer), that the officer was called out to do a search and that she was doing what she was called out to do. See id. 75:20-76:1. Nicholson protested that there was a hospital down the street that they could go to, and that the officer could not take Nicholson's clothes off. See id. at 76:1-4. The officer replied that Nicholson had to be searched, that the officer was called out to search, and that everyone was being searched. See id. at 76:5-7. The officer then raised Nicholson's shirt and felt underneath Nicholson's breasts. See id. at 76:8-17. The officer then pulled Nicholson's shorts down, which caused Nicholson to start to cry. See id. 76:17-24. The officer then searched around Nicholson's waist, buttocks, and vaginal areas, and then pulled Nicholson's pants back up and took her outside. See id. at 76:25-77:11.

Brittany Williams's testimony was similar to Nicholson's testimony. Williams testified that a female police officer grabbed Williams and said that she had to search. See Williams Deposition at 30:21-22. The officer took Williams inside the house and into the bathroom. See id. at 32:6-11. The officer shut the door and put on gloves. See id. at 32:18-20. The officer patted down Williams. See id. at 33:2-4. The officer then stuck her hand inside Williams's bra and rubbed across Williams's chest. See id. at 33:8-9. The officer then patted Williams's pockets and then tugged Williams's pants and underwear down. See id. at 33:18-34:5. The officer ran her hand from the rectal to the vaginal areas of Williams. See id. at 34:6-8. The officer then told Williams that Williams could pull up her pants, asked Williams how far along in the pregnancy she was, and then walked her outside. See id. at 34:16-22. Williams testified that the officer went back inside the house with C.W. between two and five minutes after having exited the house with Williams. See id. at 35:1-16.

C.W. testified that she had to use the restroom and that the female officer went...