Ted Bradford v. Joseph Scherschligt

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TED LOUIS BRADFORD, No. 14-35651

Plaintiff-Appellant,

D.C. No.

v. 2:13-cv-03012-

TOR

JOSEPH SCHERSCHLIGT; CITY OF

YAKIMA,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, District Judge, Presiding

Argued and Submitted

September 4, 2015—Seattle, Washington

Filed September 25, 2015

Before: John T. Noonan, Michael Daly Hawkins,

and Ronald M. Gould, Circuit Judges.

Opinion by Judge Hawkins

2 BRADFORD V. SCHERSCHLIGT

SUMMARY*

Civil Rights

The panel reversed the district court’s dismissal of a civil

rights action as time-barred and remanded for the district

court to consider in the first instance whether defendant was

entitled to qualified immunity.

In 1996, plaintiff was convicted and served a full ten-year

sentence for residential burglary and rape. In 2008, the

Washington State courts vacated his conviction based

largely on newly-available DNA testing. Prosecutors retried

plaintiff, which resulted in his acquittal in 2010. In 2013,

plaintiff brought a 42 U.S.C. § 1983 action against a Yakima

Police Department detective alleging the deliberate

fabrication of evidence. The district court, determining that

the running of the three-year statute of limitations began on

the vacatur of plaintiff’s conviction and not the date of his

acquittal on retrial, found plaintiff’s claim time-barred.

The panel held that plaintiff’s claim did not accrue until

he was acquitted of all charges on retrial. The panel

concluded that plaintiff filed the underlying action within the

three-year statute of limitations period, and it was error to

dismiss his deliberate fabrication of evidence claim as time-

barred. The panel declined to address the defendant’s

qualified immunity defense and remanded for the district

court to consider it in the first instance.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BRADFORD V. SCHERSCHLIGT 3

COUNSEL

Leonard J. Feldman (argued), Felix G. Luna, and Tomás A.

Gahan, Peterson Wampold Rosato Luna Knopp, Seattle,

Washington, for Plaintiff-Appellant.

Robert L. Christie (argued) and Jason M. Rosen, Christie Law

Group, PLLC, Seattle, Washington, for Defendants-

Appellees.

OPINION

HAWKINS, Circuit Judge:

Ted Bradford was convicted in 1996 of residential

burglary and rape. In 2008, after Bradford served his full ten-

year sentence, the Washington State courts vacated his

conviction based largely on newly-available DNA testing,

which excluded him as a contributor of genetic material

found at the crime scene. Prosecutors then proceeded to retry

Bradford, which resulted in his acquittal in 2010. In 2013, a

few days before the three-year anniversary of that acquittal,

but more than four years after his conviction was vacated,

Bradford filed the underlying 42 U.S.C. § 1983 action against

Yakima Police Department Detective Joseph Scherschligt,

alleging the deliberate fabrication of evidence. The district

court, determining that the running of the three-year statute of

limitations began on the vacatur of Bradford’s conviction and

not the date of his acquittal, granted summary judgment in

favor of Detective Scherschligt, finding that Bradford’s claim

was time-barred.

4 BRADFORD V. SCHERSCHLIGT

Because we conclude that Bradford’s claim accrued when

he was no longer subject to criminal charges, we reverse and

remand.

FACTUAL BACKGROUND

In 1996, the Yakima Police Department, led by Detective

Scherschligt, investigated Bradford as a suspect in the

burglary and rape of a Yakima resident, whom we, like the

Washington State tribunals, will refer to as K.S. In

September 1995, a man, wearing a nylon stocking over his

face, broke into K.S.’s home and raped her. During the

attack, the assailant forced K.S. to wear a mask, which had a

piece of tape secured over the eye holes.

Detective Scherschligt took over the investigation and

prepared an internal memorandum detailing suspect leads in

October 1995. The memo explained that a neighbor had

“flushed a peeping Tom out of her back yard” in April of that

year. She also reported seeing a “white male driving a white

smaller car several mornings” around that same time—

approximately six months before K.S. was attacked. Another

resident observed a man matching the description K.S. had

provided the police around the same time the suspect would

have been fleeing the crime scene. That resident and K.S.

described the suspect as “really tall,” muscular, and with long

hair. The report did not identify either neighbor by name.

Several months later, Bradford was arrested for a series of

misdemeanors involving lewd conduct, which occurred in the

area surrounding K.S.’s neighborhood. The detective leading

the investigation into the misdemeanors, Detective Light,

informed Detective Scherschligt that Bradford might also be

a suspect in the rape and burglary investigation. Contrary to

BRADFORD V. SCHERSCHLIGT 5

K.S. and her neighbor’s description of the rape suspect,

Bradford was approximately 5' 7" tall, 210 pounds and had

short hair.

Nevertheless, Detectives Scherschligt and Light visited

Bradford while he was in custody for the misdemeanor

charges and interrogated him about the rape and burglary.

Bradford informed the detectives that he had an alibi for the

day of the crime—he was at work during the time of the

attack and was undergoing a medical procedure later that

afternoon. The detectives continued their interrogation, and

after many hours, Bradford confessed to the crime. But the

details of his confession were inconsistent with many of the

facts K.S. had reported.

After Bradford’s confession, Detective Scherschligt

returned to K.S.’s neighborhood to conduct further

interviews. One of the women interviewed at that time was

the same neighbor who earlier reported “flush[ing] the

peeping Tom” from her yard. According to Detective

Scherschligt’s report and contrary to the neighbor’s first

statement, the neighbor now recalled seeing a man driving a

small, white, two-door Toyota—the same car Bradford drove

at the time—around the neighborhood on at least six different

occasions and just weeks before K.S.’s attack. She even

reported seeing that same man staring at K.S.’s house just

days before the rape. Detective Scherschligt showed the

neighbor a photo montage from which she identified

Bradford.

In September 1996, Bradford was tried and convicted of

first-degree rape and first-degree burglary and sentenced to

122 months in prison with credit for time served. After

serving six years of his sentence, Bradford, with the help of

6 BRADFORD V. SCHERSCHLIGT

the Innocence Project Northwest, sought previously

unavailable DNA testing on physical evidence collected from

the crime scene. The physical evidence included the mask

that the assailant had forced K.S. to wear, along with the tape,

which contained genetic material from an unidentified male.

The DNA testing revealed that Bradford was not a match to

any of the samples found on the physical evidence, including

the tape affixed to the mask. Later that year, Bradford was

released from prison having served his full sentence, and he

petitioned to have his conviction vacated.

Following a hearing, the Yakima County Superior Court

concluded that the DNA evidence would likely have changed

the outcome of Bradford’s 1996 trial. The Washington Court

of Appeals agreed, granted Bradford’s petition, and vacated

his conviction, specifically permitting the prosecution to

pursue a new trial. In re Bradford, 165 P.3d 31, 32–35

(Wash. App. 2008). The court explained, “The factual

disputes regarding Mr. Bradford’s confession and alibi, like

the other factual disputes noted by the parties, remain open

questions for a jury to resolve upon retrial and in the context

of the new DNA evidence.” Id. at 35.

Bradford’s conviction and sentence were formally vacated

on August 1, 2008. The following month, Yakima County

prosecutors filed an amended information elevating the

charges against Bradford to aggravated rape and burglary,

thereby increasing the likelihood that Bradford would be

returned to prison if convicted. The retrial proceeded several

months later, and on February 10, 2010, a Washington jury

acquitted Bradford of all charges.

On February 7, 2013, just short of three years after his

acquittal, Bradford filed the underlying action, asserting

BRADFORD V. SCHERSCHLIGT 7

claims that Detective Scherschligt deliberately fabricated

inculpatory evidence.1 Detective Scherschligt moved for

summary judgment on the grounds that Bradford’s claim was

barred by the statute of limitations and that he was entitled to

qualified immunity. The district court granted the motion on

statute of limitations grounds, concluding that Bradford’s

claim accrued when his conviction was vacated on August 1,

2008. The district court did not reach Detective

Scherschligt’s alternative argument regarding qualified

immunity. Bradford timely filed this appeal.2

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a district court’s grant of summary judgment on

statute of limitations grounds. Tarabochia v. Adkins,

766 F.3d 1115, 1120 (9th Cir. 2014). Summary judgment is

appropriate when, viewing the evidence in the light most

favorable to the non-moving party, the court determines that

there are no genuine issues of material fact, and the moving

party is entitled to judgment as a matter of law. Id.

1

The operative complaint for purposes of this appeal is Bradford’s third

amended complaint, which removed allegations that Detective

Scherschligt withheld material exculpatory evidence. Bradford now

argues that he only removed his claim based on the withholding of a

sketch but maintained his claim based on the withholding of witness

information. On remand, we reopen the issue of whether Bradford has

adequately pleaded a Brady claim, or whether he may again amend his

complaint to do so.

2

Bradford also brought negligence-based claims against the City of

Yakima, and the district court granted judgment to the City on all claims.

Bradford appeals the ruling only with regard to his §1983 claim against

Detective Scherschligt.

8 BRADFORD V. SCHERSCHLIGT

ANALYSIS

Before turning to the statute of limitations and qualified

immunity issues before us, we provide a brief overview of the

legal claim that Bradford asserts, as the elements of the claim

are central to both inquiries. As Bradford explains, he is

asserting a claim for deliberate fabrication of evidence, as

recognized by this Court in Devereaux v. Abbey, 263 F.3d

1070, 1076 (9th Cir. 2001) (en banc). For ease of reference,

we will refer to this as a Devereaux claim.

A Devereaux claim is a claim that the government

violated the plaintiff’s due process rights by subjecting the

plaintiff to criminal charges based on deliberately-fabricated

evidence. 236 F.3d at 1074–75. Fundamentally, the plaintiff

must first point to evidence he contends the government

deliberately fabricated. See, e.g., Costanich v. Dep’t of Soc.

& Health Servs., 627 F.3d 1101, 1107 (9th Cir. 2010) (false

statements in report and declaration); McSherry v. City of

Long Beach, 423 F.3d 1015, 1022 (9th Cir. 2005) (false

testimony at trial).

Then, there are two “circumstantial methods” of proving

that the falsification was deliberate. Costanich, 627 F.3d at

1111. The first method is to demonstrate that the defendant

continued his investigation of the plaintiff even though he

knew or should have known that the plaintiff was innocent.

Devereaux, 263 F.3d at 1076. The second method is to

demonstrate that the defendant used “investigative techniques

that were so coercive and abusive that [he] knew or should

have known that those techniques would yield false

information.” Id. These methods are not themselves

independent causes of action. Rather, they are methods of

BRADFORD V. SCHERSCHLIGT 9

proving one element—intent—of a claim that the government

deliberately fabricated the evidence at issue.

I. Statute of limitations.

As a matter of first impression, we must determine when

a Devereaux claim accrues and starts the running of the

limitations period. Although Washington’s three-year statute

of limitations applies to Bradford’s § 1983 claim, Bagley v.

CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991),

the Supreme Court has held that federal law determines the

date of accrual, Wallace v. Kato, 549 U.S. 384, 388 (2007).

At the outset, we address Bradford’s contention that his

claim would have been barred by Heck v. Humphrey,

512 U.S. 477 (1994), had he filed it immediately upon

vacatur of his conviction. We disagree. Heck established the

now well-known rule that when an otherwise complete and

present § 1983 cause of action would impugn an extant

conviction, accrual is deferred until the conviction or

sentence has been invalidated. Id. at 487. As the Supreme

Court made clear in its decision in Wallace, however, Heck

applies only when there is an extant conviction and is not

implicated merely by the pendency of charges. Wallace,

549 U.S. at 392–94. Consequently, the resolution of this

appeal hinges on traditional rules of accrual and not on the

extension of Heck to retrial proceedings.

Turning then to the principles of accrual, “it is the

standard rule that accrual occurs when the plaintiff has a

complete and present cause of action.” Wallace, 549 U.S. at

388 (internal alterations and quotation marks omitted). In

other words, a claim accrues when the plaintiff knows or has

reason to know of the injury that forms the basis of his cause

10 BRADFORD V. SCHERSCHLIGT

of action. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.

2001).

We have recently considered the accrual date of § 1983

claims on two occasions. See Rosales-Martinez v. Palmer,

753 F.3d 890, 891 (9th Cir. 2014); Jackson v. Barnes,

749 F.3d 755, 760–61 (9th Cir. 2014). Jackson involved a

plaintiff who succeeded in having his conviction and sentence

vacated on the basis of a Miranda violation and immediately

thereafter filed a § 1983 action. 749 F.3d at 758–59. While

his § 1983 action was pending, the plaintiff was retried and

convicted on the same charges. Id. at 759. The district court

dismissed the § 1983 action, reasoning that it was barred both

by Heck, in light of the plaintiff’s second conviction, and by

the applicable statute of limitations. Id. We reversed,

holding that the plaintiff’s claim would not impugn his

second conviction because the order vacating his original

conviction precluded the government from using the

unlawfully-obtained statements in a second trial. Id. at

760–61. Therefore, the second trial was “entirely insulated

from the Miranda violation associated with his initial

conviction.” Id. at 761. Further, the plaintiff’s claim could

not have accrued before his original conviction and sentence

were vacated; therefore, it was timely. Id.

In Rosales-Martinez, we wrote “to clarify our law on

when a released prisoner’s cause of action for constitutional

violations accrues, and when the statute of limitations begins

to run.” 753 F.3d at 891. Relying on Jackson and Wallace,

we held that the plaintiff’s § 1983 Brady claim “did not

accrue until the Nevada court vacated [his] convictions on

December 2, 2008.” Id. at 896. The plaintiff’s conviction

was vacated in conjunction with a comprehensive plea

agreement that resolved all outstanding charges against the

BRADFORD V. SCHERSCHLIGT 11

plaintiff. Id. at 893. The date the conviction was vacated

thus also marked the date on which the plaintiff could no

longer be prosecuted for the underlying charges. See id.

Here, Bradford alleges a violation of his due process

rights based on the initiation of criminal charges that were

based on allegedly fabricated evidence. The constitutional

violation and resultant injury thus began on the date that the

State brought charges against Bradford. Yet, unlike Jackson,

in which the date of vacatur was the date on which the

government could no longer use the unlawful evidence

against the plaintiff, or Rosales-Martinez, in which the date

of vacatur was also the date on which all charges were

conclusively resolved, Bradford’s conviction was vacated in

a manner that specifically permitted the pursuit of the same

charges against him based on the same evidence.3 The

inquiry here is therefore not as simple as merely identifying

the onset date of injury. Indeed, the limitations period “on

common-law torts do[es] not always begin on the date that a

plaintiff knows or has reason to know of his injury.” Owens

v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 389

(4th Cir. 2014), cert. denied, 135 S. Ct. 1893 (2015).

To determine the proper date of accrual, we look to the

common law tort most analogous to Bradford’s claim. See

Wallace, 549 U.S. at 388–89. As we have explained, the

right at issue in a Devereaux claim is the right to “be free

from [criminal] charges” based on a claim of deliberately

fabricated evidence. Devereaux, 263 F.3d at 1075. In this

regard, it is similar to the tort of malicious prosecution, which

involves the right to be free from the use of legal process that

3

Indeed, Detective Scherschligt’s counsel stated at oral argument that

detectives pursued no further investigation before Bradford’s retrial.

12 BRADFORD V. SCHERSCHLIGT

is motivated by malice and unsupported by probable cause.

Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir.

2004).

In a recent case, the Fourth Circuit provided a helpful

analysis of the accrual rules for malicious prosecution claims.

Owens, 767 F.3d at 379. There, the Fourth Circuit was tasked

with determining when a certain Brady-based § 1983 claim

had accrued. Id. at 388–92. The court first recognized that

under Wallace, a court evaluates the proper accrual date for

a claim by identifying the common law analogue for the

§ 1983 claim and applying any “distinctive” accrual rules

associated with that common law analogue. Id. at 389–92.

Likening it to a malicious prosecution claim, the court held

that the § 1983 claim had accrued when prosecutors entered

a nolle prosequi rather than the date on which the court had

originally granted the plaintiff a new trial. Id. at 392. The

court noted that a malicious prosecution claim does not

accrue until the proceedings against the plaintiff have

“terminated ‘in such manner that [they] cannot be revived.’”

Id. at 390 (citing W. Page Keeton, et al., Prosser & Keeton on

Torts § 119 (5th ed. 1984)). We find this reasoning

persuasive.

Setting the accrual date for Bradford’s Devereaux claim

as the date of acquittal is logical. If Bradford’s original 1996

trial had resulted in an acquittal, his Devereaux claim would

have accrued on the date the charges against him were

dismissed. See Walker v. Jastemski, 159 F.3d 117, 119 (2d

Cir. 1998) (claim based on officers’ conspiracy to fabricate

evidence accrued when charges dismissed); cf. Johnson v.

Dossey, 515 F.3d 778, 781 (7th Cir. 2008) (Brady-like § 1983

claim accrued on date of acquittal). The analysis is the same

in the retrial setting where, as here, the government pursues

BRADFORD V. SCHERSCHLIGT 13

the same charges based on the same evidence after the

vacatur of the original conviction.

In this instance, setting the triggering date for the onset of

the limitations period as the date of acquittal also makes

practical sense. Had Bradford brought his claims immediately

after his conviction was vacated, Detective Scherschligt

would almost certainly have moved to stay proceedings on

the grounds that a retrial was imminent and that a conviction

would produce a Heck bar against Bradford’s claims.4 Thus,

Detective Scherschligt would not only not be prejudiced by

a delay in reaching the merits, he might well have benefitted

from it.

We recognize, however, that the result may be different

under other factual circumstances. For example, a similar

claim could accrue upon vacatur of a conviction if the

conviction was set aside in a manner precluding the

government from maintaining charges on evidence presented

at the initial trial. See Jackson, 749 F.3d at 760–61. But in

this case, Bradford remained subject to the very same charges

based on the same evidence, which forms the basis of his

claim, until his February 10, 2010, acquittal. His claim

seeking to vindicate his right to be free from those criminal

charges based on the allegedly fabricated evidence did not

accrue until the charges were fully and finally resolved and

could no longer be brought against him.5

4

Again, Detective Scherschligt’s counsel acknowledged as much at oral

argument.

5

For the first time on appeal, Detective Scherschligt argues that

Bradford’s claim is untimely even if it accrued on the date of his acquittal.

Scherschligt argues that this is so because Bradford raised his deliberate

14 BRADFORD V. SCHERSCHLIGT

We therefore conclude that Bradford filed the underlying

action within the three-year statute of limitations period, and

it was error to dismiss his deliberate fabrication of evidence

claim as time-barred.

II. Qualified Immunity.

Detective Scherschligt asks us to affirm, in the

alternative, on the basis that he is entitled to qualified

immunity. Although he raised his qualified immunity

defense in his motion for summary judgment, he limited his

arguments to a claim based on allegations that Bradford’s

confession was coerced. The district court did not reach the

issue of qualified immunity, and Bradford confirmed at

argument that he is no longer pursuing a claim based on his

own confession. We therefore decline to address Detective

Scherschligt’s qualified immunity defense, and remand for

the district court to consider it in the first instance.

fabrication of evidence claim in his third amended complaint filed on

September 26, 2013. Even if Detective Scherschligt had not waived this

argument by failing to raise it below, K.W. ex rel. D.W. v. Armstrong,

789 F.3d 962, 974 (9th Cir. 2015), we would reject it. Bradford’s

Devereaux claim is based on the same factual allegations set forth in the

original complaint, and at best, is a new legal theory predicated on the

precise transactions and occurrences set out in the complaint that Bradford

filed on February 7, 2013. Consequently, his claim relates back to that

filing date, and is timely. See Fed. R. Civ. P. 15(c)(1)(B); Clipper

Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240,

1259 n.29 (9th Cir. 1982) (holding that fraud claim related back to original

complaint that asserted antitrust violation based on same ICC protests).

BRADFORD V. SCHERSCHLIGT 15

CONCLUSION

We hold today that Bradford’s claim did not accrue until

he was acquitted of all charges on February 10, 2010.

Therefore, it was error to dismiss his claim as time- barred,

and we reverse. We remand for the district court to consider

in the first instance whether Detective Scherschligt is entitled

to qualified immunity under the circumstances.

REVERSED AND REMANDED