McSherry v. City of Long Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONARD MCSHERRY, 

Plaintiff-Appellant,

v. No. 03-57064

CITY OF LONG BEACH; LONG BEACH

POLICE DEPARTMENT; NORMAN  D.C. No.

CV-02-03767-RGK

TURLEY, Officer; CARTHEL S.

OPINION

ROBERSON, in his individual and

official capacities,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted

July 13, 2005—Pasadena, California

Filed September 8, 2005

Before: Jerome Farris, Dorothy W. Nelson, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge D.W. Nelson

12641

12644 MCSHERRY v. CITY OF LONG BEACH

COUNSEL

Mark A. Borenstein, Overland & Borenstein, Los Angeles,

California, for the plaintiff-appellant.

Noland C. Hong (argued), Michael M. Mullins (on the briefs),

Brown, Winfield & Canzoneri, Los Angeles, California, for

the defendants-appellees.

OPINION

D.W. NELSON, Circuit Judge:

Leonard McSherry appeals the district court’s order grant-

ing defendant City of Long Beach’s (“City’s”) motion for

judgment as a matter of law under Federal Rule of Civil Pro-

cedure 50. The court granted defendant’s motion on the first

day scheduled for trial, prior to the presentation of any evi-

dence in the case. We conclude that the motion was inappro-

priately granted, and accordingly reverse and remand the

decision.

McSherry also appeals the denial of two evidentiary

motions in limine and requests reassignment of the case to a

different judge on remand. We cannot review the district

court’s evidentiary rulings because those rulings are not final

decisions reviewable under 28 U.S.C. § 1291. We deny the

request for reassignment.

I.

Plaintiff McSherry brings this civil action against the City

of Long Beach, alleging that the City and its employees, Offi-

MCSHERRY v. CITY OF LONG BEACH 12645

cers Turley and Roberson, violated his constitutional rights

during an investigation that lead to his conviction for child

molestation. McSherry had served nearly fourteen years of a

48-year to life prison sentence before DNA evidence exoner-

ated him and the Superior Court of Los Angeles County

ordered his release.

The investigation at issue in this case concerned the kid-

napping, molestation, and rape of a six-year-old girl in March

1988. Her abduction from a playground in Long Beach, Cali-

fornia, was witnessed by her four-year-old brother. Long

Beach Police Department (LBPD) investigators first inter-

viewed the victim about ten hours after she was released by

the perpetrator. According to McSherry’s pretrial contentions

of fact, during her first interview with police, the victim

described the perpetrator as “a white male with black hair and

mustache [who] was short, fat and older than her grandfa-

ther.” She told the officers that he made her get into a “green

‘strange car.’ ” Her younger brother told police that his sister

got into a green car with a man who was “red in color” and

had black hair. Five days later, a neighbor reported to the

police that, on the day of the abduction, she had seen a suspi-

cious looking man in the area where the victim was abducted.

Her description in several ways matched the description given

by the victim. The neighbor also had seen an unfamiliar green

pick-up truck in the area.

McSherry contends that the victim told the police that the

perpetrator drove her to a place that had numbers on the door

and had only two rooms, a bedroom and a bathroom. She

described the building as a brown house with stairs, and said

that she had been upstairs in a bedroom with a television and

without pictures on the walls.

Several weeks after the incident, after the investigation had

not provided any leads, defendant Officer Turley interviewed

the victim in the presence of a social worker at a children’s

psychiatric facility. Turley showed the victim six photos in an

12646 MCSHERRY v. CITY OF LONG BEACH

attempt to determine if a suspect who matched the victim’s

initial description was the perpetrator. Although his appear-

ance did not conform to the victim’s description, McSherry’s

photo was among the choices.1 The victim allegedly identified

McSherry as the perpetrator two times. Several days later,

Turley showed the victim the same photos as in the earlier

array, and she again identified McSherry. Turley also showed

the victim photos of cars, and she reportedly identified

McSherry’s father’s yellow Mazda station wagon as the vehi-

cle she rode in. The victim also participated in a line up.

Although she failed to identify McSherry, she identified him

to police immediately after she left the room, stating that she

had been afraid to identify him during the line up.

McSherry was arrested on May 17 at his grandparents’

home. Defendants Turley and Roberson interrogated

McSherry, who provided a detailed description of the interior

of the house. The next day, Turley interviewed the victim to

obtain a description of the place to which she had been taken.

The victim reportedly identified a photo of McSherry’s grand-

parents’ house, though it did not match her earlier descrip-

tions. She allegedly provided a detailed description of the

interior, including the content of pictures on the wall, the

color of sheets and blankets on the bed, and the color and

location of furnishings in the room. Turley served a search

warrant on McSherry’s grandparents’ house the following

day. McSherry contends that in her next interview with

police, the victim added more details to her description of the

interior of the house, including the shape of a mirror, how

doors opened, the location of a photograph, and the sound of

a bird in the next room. The description conformed to the

interior of a bedroom in McSherry’s grandparents’ house.

McSherry was convicted on the basis of the victim’s and

her neighbor’s testimony and in-court identifications, and

1

McSherry resided in the area and had a prior conviction for child

molestation.

MCSHERRY v. CITY OF LONG BEACH 12647

Turley’s testimony about the victim’s identification and

description of McSherry’s grandparents’ house. He was sen-

tenced to 48 years to life in prison.

In December 2001, McSherry had served nearly fourteen

years of his sentence when DNA analysis revealed that he had

not committed the crimes. The DNA matched that of George

Valdespino, who was serving a life sentence in California

state prison at the time of McSherry’s release. Valdespino had

been arrested in Costa Mesa one week after the abduction,

and was charged at that time with kidnapping and molesting

a four-year-old girl. In December 2001, Valdespino admitted

in a taped confession that in 1988 he had kidnapped a girl in

the Long Beach area in a green Ford Ranchero and taken her

to a motel room to molest her.

The victim testified at a deposition in 2002 that she was

impatient during her interviews with Turley and just wanted

to play. She recalled that Turley pointed to a number of pho-

tos during the interview. McSherry contends that the victim

stated that she had not identified the yellow Mazda as the car

she was kidnapped in, and that she did not give a description

of the place she was taken as Turley testified at the trial.

In May 2002, McSherry filed a complaint under 42 U.S.C.

§ 1983 alleging that the City of Long Beach, the LBPD, and

Officer Turley violated McSherry’s Fourth, Fifth, and Four-

teenth Amendment rights. Turley’s supervisor, Roberson, was

added as a defendant in April 2003. McSherry alleged that

Turley and Roberson violated his rights to due process of law

and freedom from unreasonable seizures and searches. He

contended that the City of Long Beach maintained policies or

practices that included failure to train or supervise officers on

investigation procedures, and reckless retention or assignment

of officers. The court ordered that the proceedings be trifur-

cated into separate trials on individual liability, municipal lia-

bility, and damages, and that the liability of Officers Turley

and Roberson be tried first.

12648 MCSHERRY v. CITY OF LONG BEACH

Just before trial was scheduled to begin, the defendants

filed a Motion for Judgment as a Matter of Law under Federal

Rule of Civil Procedure 50, arguing that the individual offi-

cers had qualified immunity and thus that there was no evi-

dence from which a jury could reach a finding of individual

liability. The court permitted McSherry to file a response,

“[i]f [he] thought it [was] appropriate.” McSherry’s response

indicated that he considered the motion an inappropriate

attempt to smoke out his trial strategy. He included no evi-

dence with his filing; the defense included only limited evi-

dentiary support with its motion. The court heard argument a

week later, on the first day scheduled for trial.

In its oral ruling, the court stated that “qualified immunity

is not necessarily a jury issue and should be determined . . .

at the earliest possible time.” The court determined that

Devereaux v. Abbey, 263 F.3d 1070, 1075-76 (9th Cir. 2001)

(en banc), precluded a constitutional claim based on the use

of improper interview techniques. Thus, according to the dis-

trict court, the primary issues in the case were whether the

defendants had acted in a way that they knew or should have

known would produce a false result, or whether the defen-

dants had presented fabricated evidence. The court concluded

that McSherry had not presented evidence showing that the

officers had fabricated evidence or acted in a way that would

produce a false result, and thus that he had not shown that the

defendants had violated his due process rights. The court

granted qualified immunity to Turley and Roberson, dis-

missed the individual liability claims against them, and dis-

missed the municipal liability claims as pendant to the

individual liability claims. McSherry urges that the dismissal

was improper under Rule 50.

II.

The pre-trial use of Rule 50 in this case presents a matter

of first impression in this circuit. Indeed, it is difficult to find

any case making a comparable use of the rule. We review the

MCSHERRY v. CITY OF LONG BEACH 12649

grant of judgment as matter of law de novo to determine

whether the use of Rule 50 at the outset of trial, prior to the

presentation of any evidence, is appropriate. See City Solu-

tions, Inc. v. Clear Channel Comm. Inc., 365 F.3d 835, 839

(9th Cir. 2004). We conclude that this use of Rule 50 is not

supported by the language of the rule, the advisory commit-

tee’s notes, or caselaw governing the proper use of Rule 50.

Accordingly, we remand for further proceedings.

[1] The text of Rule 50(a) provides:

If during a trial by jury a party has been fully heard

on an issue and there is no legally sufficient eviden-

tiary basis for a reasonable jury to find for that party

on that issue, the court may determine the issue

against that party and may grant a motion for judg-

ment as a matter of law against that party with

respect to a claim or defense that cannot under the

controlling law be maintained or defeated without a

favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1). Thus, Rule 50(a) presumes that a

jury trial has begun, and that the nonmoving party “has been

fully heard” on the issue prior to the court’s ruling. However,

Rule 50(a)(2) provides: Motions for judgment as a matter of

law may be made at any time before submission of the case

to the jury. Such a motion shall specify the judgment sought

and the law and the facts on which the moving party is enti-

tled to the judgment. Fed. R. Civ. P. 50(a)(2). Defendants

urge that their motion is proper under Rule 50(a)(2), pointing

to the language authorizing motions “at any time before sub-

mission of the case to jury” as supporting the principle that a

Rule 50 motion may be made at, literally, “any time” once a

trial has commenced, regardless of the state of evidence

admitted.

[2] We decline to adopt this interpretation of Rule 50(a)(2).

Nothing about the language or structure of the provisions sug-

12650 MCSHERRY v. CITY OF LONG BEACH

gests that Rule 50(a)(2) has a force independent of Rule

50(a)(1). Reading the two provisions together, it is apparent

that Rule 50(a)(1) sets forth the standards under which a court

may grant judgment as a matter of law, while Rule 50(a)(2)

explains when a party may make a motion. The latter section

thus supplements the former by instructing the moving party

that it may file a motion until the case is submitted to the jury,

but does not eliminate the substantive requirement that a party

be “fully heard” on an issue prior to the grant of judgment as

a matter of law.

[3] Among the panoply of Federal Rules of Civil Procedure

are several mechanisms for a party to obtain a pre-trial dis-

missal of an action, none of which the defendants employed

here: a motion for dismissal for failure to state a claim pursu-

ant to Rule 12(b)(6), a motion for judgment on the pleadings

under Rule 12(c), and a motion for summary judgment under

Rule 56. Defendants effectively ask us to read Rule 50(a)(2)

as establishing an additional procedure to dismiss a case

before trial. Although the standard for granting a motion for

summary judgment is identical to that for granting a judgment

as a matter of law, Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986), Rule 50(a)(2) is not intended as an alterna-

tive mechanism for obtaining summary judgment, as the advi-

sory committee notes make clear. See Fed. R. Civ. P. 50,

Advisory Comm. Notes to 1991 Amends., Subdivision (a).

The advisory committee notes to the 1991 Amendments

explain that motions must be made “prior to the close of the

trial,” in order “to assure the responding party an opportunity

to cure any deficiency in that party’s proof that may have

been overlooked until called to the party’s attention . . . .” Id.

To that extent, the advisory committee noted that Rule

50(a)(2) “impose[s] a requirement that the moving party artic-

ulate the basis on which a judgment as a matter of law might

be rendered” so as to inform the non-moving party how it

might correct the deficiencies. Id. It is apparent, therefore,

that the language in Rule 50(a)(2) is not intended to permit

MCSHERRY v. CITY OF LONG BEACH 12651

pre-trial motions but rather to prevent the moving party from

waiting until it is too late for the non-moving party to perfect

its case. See also Waters v. Young, 100 F.3d 1437, 1441 (9th

Cir. 1996) (noting that “a major purpose” of a motion under

Rule 50(a) is to give the non-moving party notice of the defi-

ciency).

[4] The advisory committee notes also make clear that a

court may not grant a motion for judgment as a matter of law

before a party has presented evidence in the case. The court

is authorized to grant judgment as a matter of law “at any time

during the trial, as soon as it is apparent that either party is

unable to carry a burden of proof” required, and it may rule

“as soon as a party has completed a presentation on a fact

essential to that party’s case.” Fed. R. Civ. P. 50, Advisory

Comm. Notes to 1991 Amends., Subdivision (a).

Such early action is appropriate when economy and

expedition will be served. In no event, however,

should the court enter judgment against a party who

has not been apprised of the materiality of the dispo-

sitive fact and been afforded an opportunity to pre-

sent any available evidence bearing on that fact.

Id. While “early action” is thus permissible under Rule 50, the

“early action” at issue here was too early: McSherry was not

afforded an opportunity to present evidence bearing on the

issue of qualified immunity, nor was he “apprised of the

materiality of the dispositive fact.” Id. Although McSherry

was permitted to file an opposition, he was not informed that

the court would treat the defense’s motion as one for sum-

mary judgment, nor that the failure to present evidence to the

court prior to trial would be fatal to his case.

[5] Although cases exist in which courts have granted judg-

ment as a matter of law at very early stages in the proceed-

ings, none suggests that such a motion should have been

granted under the circumstances presented here. See Moore v.

12652 MCSHERRY v. CITY OF LONG BEACH

J.H. Matthews & Co., 473 F.2d 328, 329-30 (9th Cir. 1973)

(construing a judgment as a matter of law granted after open-

ing statements as a judgment on the pleadings); United States

v. Vahlco, 720 F.2d 885, 889 (5th Cir. 1983) (cautioning that

it did not “much approve of the irregular procedure that the

trial court followed in granting a directed verdict before the

non-moving party had a chance to put in evidence.”). The

Fifth Circuit recently considered whether a plaintiff could be

considered to be “fully heard” under Rule 50 where the dis-

trict court granted a motion for judgment as a matter of law

before the plaintiff had finished presentation of evidence.

Echeverria v. Chevron USA Inc., 391 F.3d 607, 611-12 (5th

Cir. 2004). Adopting the views of the D.C. and Sixth Circuits,

the court concluded that “a party has not been fully heard

until he has submitted all of his evidence and closed his case.”

Id. at 611-12 (citing Teneyck v. Omni Shoreham Hotel, 365

F.3d 1139, 1149 (D.C. Cir. 2004); Jackson v. Quanex Corp.,

191 F.3d 647, 657 (6th Cir. 1999)). Under the rationale of

Echeverria, McSherry certainly had not been fully heard; he

had presented no evidence.2 We hold that the district court

may not grant a motion filed under Rule 50 prior to the pre-

sentation of any evidence in a case. The district court cannot

grant such a motion because the non-moving party must be

afforded the opportunity to present evidence, and the court

must evaluate that evidence in order to grant a motion under

Rule 50.

Defendants argue that because qualified immunity is a

complete immunity from suit, we should sanction the pre-trial

2

The motion filed by defendants also cannot serve as the basis for a

renewed motion of judgment as a matter of law under Rule 50(b), because

the timing and content of the motion could not have genuinely alerted

plaintiff to any evidentiary deficiencies in his case. See Fed. R. Civ. P. 50,

Advisory Comm. Notes to 1991 Amends., Subdivision (a) (noting that the

requirement in Rule 50(a)(2) that a motion contain the law and facts on

which a party is entitled to judgment is intended to ensure such informa-

tion is provided prior to the issuance of a judgment against the verdict

under Rule 50(b)).

MCSHERRY v. CITY OF LONG BEACH 12653

use of Rule 50 in this case. Although qualified immunity

should be determined as early as possible, see Saucier v. Katz,

533 U.S. 194, 200-01 (2001), this policy does not override our

concern that McSherry was not provided an adequate opportu-

nity to present evidence in his case. Furthermore, disputed

issues of fact evident on the face of McSherry’s pre-trial con-

tentions of fact render judgment as a matter of law on the

basis of qualified immunity inappropriate at this time.

Treating the motion as a motion for judgment on the plead-

ings,3 it may be granted only if, taking all the allegations in

the pleading as true, the moving party is entitled to judgment

as a matter of law. Owens v. Kaiser Found. Health Plan, Inc.,

244 F.3d 708, 713 (9th Cir. 2001). Pre-trial dismissal on qual-

ified immunity grounds is inappropriate if the plaintiff estab-

lishes that material issues of fact exist. LaLonde v. County of

Riverside, 204 F.3d 947, 953 n.10 (9th Cir. 2000); see also id.

at 963 (“[T]he facts are disputed, and the disputed facts here

should have been submitted to the jury, even when qualified

immunity from suit was an issue.”) (Trott, J., concurring in

part and dissenting in part). “[T]here is a clearly established

constitutional due process right not to be subjected to criminal

charges on the basis of false evidence that was deliberately

fabricated by the government.” Devereaux, 263 F.3d at 1074-

75. The facts alleged by McSherry support a claim of deliber-

ate fabrication, and thus, on the basis of the pleadings, the

defendants are not entitled to qualified immunity as a matter

of law. McSherry contends that the victim did not provide,

nor could she have provided, the detailed description of the

interior of McSherry’s grandparents’ house because she was

3

Although McSherry was afforded an opportunity to file an opposition

to defendants’ motion for judgment as a matter of law, he was not

informed that he should treat the motion as a motion for summary judg-

ment and provide evidence in support of his claims. The judge could have

exercised his discretion to convert defendants’ motion to a summary judg-

ment motion, but he did not notify the parties of his intention do so. We

therefore treat the motion substantively as though it were a motion for

judgment on the pleadings.

12654 MCSHERRY v. CITY OF LONG BEACH

never in the house. Turley, however, testified during McSher-

ry’s prosecution that the victim provided a detailed, and accu-

rate, description of the interior of the home. McSherry has

raised a disputed issue of fact as to whether defendants fabri-

cated some of the evidence used to obtain McSherry’s convic-

tion. Although the evidence, when presented, may cast a

different light on the factual dispute, we cannot disregard

McSherry’s contentions at this time.

Because the district court inappropriately granted judgment

as a matter of law before McSherry had an opportunity to be

fully heard on the issue of qualified immunity, we remand the

case to the district court for further proceedings consistent

with this opinion.

III.

[6] The parties argued numerous motions in limine, of

which two are contested on appeal. Although neither party

raises the question of our ability to review these rulings, we

have an independent obligation to determine whether we have

subject matter jurisdiction. See Allstate Ins. Co. v. Hughes,

358 F.3d 1089, 1093 (9th Cir. 2004). We conclude that we

may not review these questions because the district court’s

preliminary evidentiary rulings are not final decisions review-

able under 28 U.S.C. § 1291. See United States v. Luce, 469

U.S. 38, 41-42 (1984); Coursen v. A. H. Robins Co., 764 F.2d

1329, 1342 (9th Cir.), corrected by 773 F.2d 1049 (9th Cir.

1985); see also Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir.

1996).4 No exception to the final decision rule of 28 U.S.C.

4

Although both Coursen and Palmieri involved litigants who attempted

to evade the bar on review of non-final decisions by obtaining dismissal

of their cases in order to appeal the interlocutory orders, that McSherry is

before us through no fault of his own is of no moment: the decisions on

appeal are not final. See Coursen, 764 F.2d at 1342 (“In this case appel-

lants did not seek an interlocutory appeal of the in limine ruling but rather

sought to obtain review of that ruling by moving for an involuntary dis-

MCSHERRY v. CITY OF LONG BEACH 12655

§ 1291 exists under which we may review the district court’s

in limine rulings.

The reason that we may not review such rulings is clear.

For one, as the Supreme Court has noted:

Any possible harm flowing from a district court’s in

limine ruling . . . is wholly speculative. The ruling is

subject to change when the case unfolds. . . . Indeed

even if nothing unexpected happens at trial, the dis-

trict judge is free, in the exercise of sound judicial

discretion, to alter a previous in limine ruling.

Luce, 469 U.S. at 41-42. Furthermore, we may reverse the

district court’s evidentiary rulings only if McSherry demon-

strates that he has been prejudiced by the ruling, such that any

error “more probably than not . . . tainted the verdict.” Tenni-

son v. Circus Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir.

2001). “It is impossible to determine whether the movant will

be prejudiced by such ruling absent a trial, a ruling in the con-

text of trial, and the return of a verdict.” Coursen, 764 F.2d

at 1342. We conclude that we lack jurisdiction to review the

rulings, and so do not reach the merits of these questions.

IV.

[7] McSherry requests that the case be remanded to a dif-

ferent judge, arguing that “unusual circumstances” support a

reassignment. This court has the authority to remand a case to

a different judge, but generally only does so if the judge has

shown a personal bias or if “unusual circumstances” exist.

missal with prejudice. Appellant cannot make a nonfinal order appealable

by the simple expedient of taking a voluntary nonsuit and appealing.”)

(internal quotation marks and citation omitted). Palmieri, 88 F.3d at 139

(noting that “[t]his appeal illustrates the problems that arise when a party

tries to evade the final judgment rule.”)

12656 MCSHERRY v. CITY OF LONG BEACH

United States v. Sears Roebuck & Co., Inc., 785 F.2d 777,

779-80 (9th Cir. 1986). The factors for an “unusual circum-

stances” remand are:

(1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty

in putting out of his or her mind previously-

expressed views or findings determined to be errone-

ous or based on evidence that must be rejected, (2)

whether reassignment is advisable to preserve the

appearance of justice, and (3) whether reassignment

would entail waste and duplication out of proportion

to any gain in preserving the appearance of fairness.

Id. at 780. If either of the first two factors is present, reassign-

ment is appropriate. Id. We conclude that this case does not

call for the extraordinary measure of reassignment.

McSherry points to the judge’s decision to limit the length

of trial as evidence that the judge was biased. In considering

the judge’s stringent time limitations, we note that “[t]rial

courts have broad authority to impose reasonable time limits.

Such limits are useful to ‘prevent undue delay, waste of time,

or needless presentation of cumulative evidence.’ ” Navellier

v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (citation omit-

ted). Furthermore, the burden of a shorter trial fell upon both

parties.

McSherry also argues that the judge’s decision to grant the

Rule 50 motion suggests that he prejudged the evidence in the

case. The judge indicated that McSherry had not presented

any evidence that the LBPD fabricated testimony. This was an

admittedly unfair conclusion, because McSherry had not

really presented any evidence. However, this does not mean

that the judge would not consider the evidence fairly once

presented.

In general, the judge treated the parties evenhandedly and

with respect. He noted that he was “extremely impressed with

MCSHERRY v. CITY OF LONG BEACH 12657

the professionalism” of the parties. Both sides won and lost

some evidentiary motions in limine. The court granted

McSherry’s motion to retax costs, penalizing the defense for

delay in bringing its qualified immunity motion. Although the

court erroneously granted defendants’ Rule 50 motion, the

record does not indicate that the judge would have “substan-

tial difficulty in putting out of his or her mind previously-

expressed views.” Sears Roebuck & Co., Inc., 785 F.2d at

780. Considerations of judicial efficiency also counsel that the

judge who has ruled on motions in limine and is familiar with

the parties’ trial plans would be best situated to serve as the

judge on remand, whether for trial or for other proceedings as

appropriate.

CONCLUSION

Because the district court inappropriately granted the City

of Long Beach’s motion for judgment as a matter of law

before any evidence had been presented, we reverse the grant

of judgment as a matter of law. We remand the case for fur-

ther proceedings as the district court deems appropriate. We

do not have jurisdiction to review the evidentiary rulings

because such rulings are not final decisions reviewable under

28 U.S.C. § 1291. We deny the request for reassignment.

REVERSED and REMANDED.