McSherry v. City of Long Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONARD MCSHERRY, 

Plaintiff-Appellant,

v. No. 06-55837

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

February 14, 2008—Pasadena, California

Filed March 30, 2009

Before: Stephen S. Trott, Richard R. Clifton, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Trott

3805

MCSHERRY v. CITY OF LONG BEACH 3809

COUNSEL

Mark A. Borenstein, Overland Borenstein Scheper & Kim

LLP, Los Angeles, California, for the plaintiff-appellant.

Michael M. Mullins and Nowland C. Hong, Akerman Senter-

fitt LLP, Los Angeles, California, for the defendants-

appellees.

OPINION

TROTT, Circuit Judge:

This case is before us for the second time.1 In this appeal,

Leonard McSherry appeals the district court’s order granting

summary judgment on the ground of qualified immunity to

the City of Long Beach (“City”), Long Beach Police Depart-

ment (“LBPD”), Officer Norman Turley, and Sergeant Car-

thel S. Roberson. The allegations in this case stem from a

kidnaping, rape, and molestation that occurred in Long Beach,

California, in March of 1988. After McSherry served almost

fourteen years in prison for these crimes, he was exonerated

by DNA evidence and a confession by the actual perpetrator.

McSherry then brought this suit, alleging violations of his

civil rights pursuant to 42 U.S.C. § 1983.

McSherry argues that Defendants violated his civil rights

by: 1) fabricating the victim’s descriptions of the interior of

1

The first decision, McSherry v. City of Long Beach, (“McSherry I”), is

reported at 423 F.3d 1015, 1016 (9th Cir. 2005). It reviews in greater

detail the facts leading to McSherry’s arrest and conviction.

3810 MCSHERRY v. CITY OF LONG BEACH

the home where the rape occurred; 2) fabricating the victim’s

identification of the vehicle used in the kidnaping; 3) coercing

the victim’s identification of McSherry as the perpetrator; 4)

ignoring exculpatory evidence; and 5) arresting McSherry

without probable cause. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm in part, reverse in part, vacate

in part, and remand.

We conclude that genuine issues of material fact exist as to

whether Turley deliberately fabricated evidence. See

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en

banc). Accordingly, we reverse and remand this claim against

Turley, but affirm the district court with respect to all other

claims against him. Because the district court dismissed the

Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658

(1978), claim against the City and LBPD only because

McSherry did not show a constitutional violation at the hands

of Turley or Roberson, and these defendants did not assert

any other ground for dismissal on appeal, we vacate and

remand the claim. We affirm the district court’s grant of sum-

mary judgment to Roberson on all claims. We deny McSher-

ry’s request for reassignment to a different judge for the

reasons we articulated in McSherry I.

I

BACKGROUND

This appeal comes to us following remand to the district

court after we determined that the district correct incorrectly

granted judgment as a matter of law to Defendants on the first

day of the trial. McSherry I, 423 F.3d at 1022. On remand, the

district court granted summary judgment to Defendants on the

ground of qualified immunity. The district court held that

probable cause existed for McSherry’s arrest. It further held

that the fabrication of the evidence claims against Defendants

failed because: 1) McSherry did not present “any evidence

that Defendants deliberately fabricated evidence, or acted in

MCSHERRY v. CITY OF LONG BEACH 3811

any way that produced false information”; 2) District Attor-

ney Ken Lamb conducted an independent investigation of the

evidence; and 3) McSherry “failed to make or support any

factual allegations of any fabrication of evidence . . . that were

logically capable of supporting” a claim that Turley used

unconstitutionally suggestive interview techniques. The dis-

trict court held also that the Monell claim against the City and

LBPD failed because McSherry did not show a constitutional

violation by either Roberson or Turley.

The issues now before us arise out of the following facts.

In March of 1988, the six-year-old victim was kidnaped from

a playground on a Navy Base in California. The perpetrator

raped and molested her before releasing her several hours

later. According to police reports, the victim and her four-

year-old brother, a witness to the kidnaping, both provided

descriptions of the suspect to the police. Several weeks later,

Turley showed both children a photo lineup separately, and

both identified McSherry as the perpetrator. Turley’s police

reports indicate that he showed the victim and her brother

photos of cars. Both selected a yellow Mazda station wagon

belonging to McSherry’s father, identifying it as the vehicle

used in the abduction. After McSherry’s arrest, an adult wit-

ness, Robin Davis, picked McSherry out of a lineup, identify-

ing him as a person she had seen in the area on the day of the

kidnaping.

McSherry was arrested for the crime on May 17, 1988.

According to police reports, Turley and Roberson interrogated

McSherry, and he provided a detailed description of the inte-

rior of his grandparents’ residence. On May 18, the day after

McSherry’s arrest, Turley and Navy Investigative Officer

Tammy Warmack interviewed the victim to obtain a descrip-

tion of the place she had been taken. Turley’s report docu-

menting this interview states that the victim picked

McSherry’s grandparents’ home out of a photo lineup, identi-

fying it as the place McSherry had taken her. The report lists

specific details allegedly provided by the victim about the

3812 MCSHERRY v. CITY OF LONG BEACH

room where she had been raped, including: descriptions of 1)

a picture of the kidnapper on the wall; 2) a small brown tele-

vision sitting on a gray dresser; 3) a small, possibly twin size

bed, with blue sheets and a white blanket; 4) a black chair;

and 5) a mirror alongside the door.

On May 19, Turley and Warmack served a search warrant

at McSherry’s grandparents’ house. Turley’s subsequent

police report states that the victim’s description provided on

May 18, matched a bedroom in the residence. Furthermore,

according to the report, while executing the warrant officers

noticed a bird in the livingroom area and a barking dog in the

backyard.

On May 24, following the execution of the search warrant,

Turley and Warmack re-interviewed the victim to determine

if she could provide a more detailed description of the loca-

tion where she was taken. During that interview, the officers

asked if she had heard or seen any animals at the place she

was taken. According to Turley’s report, the victim said she

heard a bird. Turley asked her several other questions regard-

ing the interior of the house, and the victim’s responses

matched details of the interior of the residence. Specifically,

according to Turley, the victim gave the following additional

details: 1) the room had one door that folded up and one door

that swung open; 2) the mirror was big and round; 3) the pic-

ture of the kidnapper was round and hanging on the same wall

where the television was located; and 4) the room had a win-

dow with a seat.2

Turley testified at trial, again attributing the descriptions of

the interior of the residence to the victim. Also at trial, the

2

According to Turley’s report, although the victim said also that there

was a white push button phone in the bedroom, officers only observed a

black rotary phone in the room. Turley stated in his report that the investi-

gators believed the victim may have been remembering the phone in the

house where the kidnapper released her.

MCSHERRY v. CITY OF LONG BEACH 3813

victim and Davis identified McSherry as the perpetrator.

Medical evidence indicated that McSherry was a possible

donor of the semen taken from the victim’s underwear.

Following the trial, McSherry was convicted of the crimes.

In December of 2001, nearly fourteen years into his forty-

eight-year to life sentence, McSherry was exonerated by DNA

evidence. The DNA revealed that George Valdespino had

committed the crime. Valdespino later confessed.

II

STANDARD OF REVIEW

We review de novo a district court’s grant of summary

judgment on the ground of qualified immunity. Blankenhorn

v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). “We

may not affirm a grant of summary judgment if there is any

genuine issue of material fact or the district court incorrectly

applied the substantive law.” Id. All justifiable inferences are

to be drawn in favor of the non-moving party and his evi-

dence is to be believed. Id.

III

DISCUSSION

[1] “Qualified immunity is ‘an entitlement not to stand trial

or face the other burdens of litigation.’ ” Saucier v. Katz, 533

U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)). Qualified immunity is a two-part test. We

must determine whether, taken in the light most favorable to

McSherry, Defendants’ conduct amounted to a constitutional

violation, and, if so, we must determine whether or not the

right was clearly established at the time of the violation. Id.

at 201 We may address the prongs in the sequence we see fit.

Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818

(2009).

3814 MCSHERRY v. CITY OF LONG BEACH

A. Fabrication of Evidence

1. Turley

In support of his claim that officers deliberately fabricated

evidence, McSherry points in particular to the description of

the interior of his grandparents’ residence and argues that: 1)

he provided Turley a detailed description of his grandparents’

house after he was arrested; 2) Turley interviewed the victim

the next day, then later documented in his police report and

also testified at trial that the victim provided a detailed

description of the interior of the residence during that inter-

view; 3) the victim’s detailed description differed from her

initial description but matched the grandparents’ residence; 4)

after Turley searched the house, he reported that the victim

provided another description with more matching details, 5)

fourteen years after she was kidnaped, the victim denied giv-

ing the descriptions that Turley documented and testified to;

and 6) because McSherry was exonerated of the crimes and

another party confessed, the victim obviously was never in the

residence and could not have provided such a detailed

description.

[2] The victim’s deposition creates a genuine issue of mate-

rial fact as to whether Turley fabricated evidence. She denied

providing the detailed description of the residence ascribed to

her by Turley. Specifically, the victim said she did not tell

police there was a picture on the wall because there was not

one. She also denied telling the police that there were blue

sheets and a white blanket on the bed. When asked whether

she had told police that there was a folded up door in the

room where she was taken, she said “No. There was no way

that a five-year-old can actually remember everything in the

house. I mean that’s too much for a five-year-old. There’s no

way. That’s too much information in a house for a five-year-

old to describe.” She denied also telling police that there was

a window seat, that she heard a bird, or that there was a circu-

lar mirror. That Turley included that information, attributed to

MCSHERRY v. CITY OF LONG BEACH 3815

the victim, in his reports means there are genuine issues of

material fact as to whether Turley fabricated the descriptions.

Credibility is an issue for the trier of fact.

[3] As a result, Turley is not entitled to qualified immunity.

If the evidence was fabricated, Turley violated McSherry’s

“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. Consequently, we reverse

the judgment of the district court as to this claim that Turley

deliberately fabricated evidence. At trial, McSherry may sup-

port his deliberate fabrication claim with evidence that Turley

“used investigative techniques that were so coercive and abu-

sive that [he] knew or should have known that those tech-

niques would yield false information.” Id. at 1076. McSherry

may present direct or circumstantial evidence, including evi-

dence about identifications of McSherry by the victim, the

victim’s brother, and an adult witness, and identifications of

McSherry’s father’s car by the victim and the victim’s

brother.

McSherry argues also that Turley is liable for his allegedly

false trial testimony regarding the descriptions of the interior

of the residence. This claim is foreclosed by Briscoe v.

LaHue, 460 U.S. 325, 326 (1983) (holding that police officers

are immune from liability under 42 U.S.C. § 1983 for per-

jured testimony).3

3

McSherry relies on Harris v. Roderick, 126 F.3d 1189, 1198-99 (9th

Cir. 1997) for the proposition that Turley is not entitled to immunity

because he initiated the prosecution. We do not find this argument persua-

sive. Harris holds that if officers “functionally served as complaining wit-

nesses who may be said to have initiated [the] prosecution they are not

entitled to absolute immunity for their false statements.” 126 F.3d at 1199.

In Harris, unlike the case at bar, there were no other complaining wit-

nesses, only the officers. Here, the victim served as the complaining wit-

ness.

3816 MCSHERRY v. CITY OF LONG BEACH

2. Roberson

[4] We hold that no genuine issue of material fact exists as

to whether Roberson fabricated evidence. There are no police

reports by Roberson in the record attributing the allegedly

fabricated descriptions of the interior of the residence to the

victim. Roberson did not participate in the interviews with the

victim, nor did he participate in serving the search warrant at

the residence. Furthermore, nothing in the victim’s deposition

testimony indicates that Roberson attributed fabricated

descriptions of the residence to her.

3. Monell Claim against the City

[5] Under the Monell doctrine, McSherry may recover from

the City and LBPD if his injury was inflicted pursuant to city

policy, regulation, custom, or usage. See Monell, 436 U.S. at

690-91, 694. The district court dismissed the claims against

the City and LBPD only because McSherry did not show a

constitutional violation at the hand of Turley or Roberson, and

the City and LBPD did not present any other argument in sup-

port of the judgment in favor of the City and LBPD. Based

on our determination that there is a genuine issue of material

fact as to whether Turley committed a constitutional violation,

and because the defendants have not asserted any other

ground for dismissal on appeal, we vacate and remand the

Monell claim against the City and LBPD.

B. Exculpatory Evidence

[6] McSherry argues also that Defendants violated the Due

Process Clause of the Fourteenth Amendment by ignoring

exculpatory evidence. “A police officer’s failure to preserve

or collect potential exculpatory evidence does not violate the

Due Process Clause unless the officer acted in bad faith.”

Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th

Cir. 2003).

MCSHERRY v. CITY OF LONG BEACH 3817

[7] McSherry claims that Defendants acted in bad faith

when they ignored: 1) Valdespino’s arrest for a crime similar

to the victim’s abduction one week later in a nearby county;

2) the fact that initial identification statements by Davis, the

victim, and the victim’s brother did not resemble McSherry;

and 3) the possibility that Davis’s identification was influ-

enced by a newspaper photograph of McSherry. These claims

fail. First, McSherry does not offer any evidence that in 1988

Defendants knew that Valdespino was arrested in a nearby

county for a similar crime. Absent such a showing, there is no

evidence of bad faith.

[8] Second, as to the descriptions given by the children,

Defendants “must be given some latitude in determining when

to credit witnesses’ denials and when to discount them, and

we are not aware of any federal law . . . that indicates pre-

cisely where the line must be drawn.” Devereaux, 263 F.3d at

1075. Defendants do not dispute that McSherry did not resem-

ble the initial descriptions given by the two children, how-

ever, nothing in the record shows that Defendants acted in bad

faith by relying on the children’s photo lineup identification

of McSherry rather than their initial descriptions.

[9] Third, with respect to Davis’ identification of McSherry

in a photo lineup, McSherry argues that Davis was shown a

photo lineup after McSherry’s picture appeared in the paper,

implying that she chose him because she recognized him from

the newspaper photo. This evidence does not prove bad faith

because McSherry must “ ‘put forward specific, nonconclu-

sory factual allegations’ that establish improper motive.” Jef-

fers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001) (per curiam)

(quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).

McSherry does not offer any evidence that Davis ever saw the

picture nor that she based her subsequent identification on

that picture. Furthermore, because Davis selected McSherry’s

picture from the lineup, we do not find bad faith on the part

of Defendants in relying on this identification rather than her

initial description.

3818 MCSHERRY v. CITY OF LONG BEACH

C. Probable Cause

[10] McSherry claims that Defendants had no probable

cause to arrest him because they: 1) fabricated evidence; 2)

used suggestive interview techniques; 3) manipulated or

coerced witnesses; and 4) disregarded exculpatory evidence.

“Probable cause arises when an officer has knowledge based

on reasonably trustworthy information that the person arrested

has committed a criminal offense.” Gausvik v. Perez, 345

F.3d 813, 818 (9th Cir. 2003) (citing Beck v. Ohio, 379 U.S.

89, 91 (1964)).

[11] We have already determined that there are no genuine

issues of material fact as to whether Defendants used

improper interview techniques or ignored exculpatory evi-

dence. Even if the description of the interior of the residence

was fabricated, Defendants had probable cause for the arrest.

Here, the victim and her brother identified McSherry as the

perpetrator and his father’s car as the vehicle used to perpe-

trate the crime. Medical evidence indicated that semen taken

from the victim’s underwear could belong to McSherry. We

hold that these facts established probable cause for the arrest.

See id.

D. Independent Investigation by District Attorney Lamb

[12] Defendants argue that they cannot be held liable for

any damages McSherry suffered after the district attorney

filed charges against him. We disagree. “[W]here police offi-

cers do not act maliciously or with reckless disregard for the

rights of an arrested person, they are not liable for damages

suffered by the arrested person after a district attorney files

charges unless the presumption of independent judgment by

the district attorney is rebutted.” Smiddy v. Varney, 665 F.2d

261, 267 (9th Cir. 1981). The presumption may be rebutted if

McSherry met his burden of showing that “officers knowingly

withheld relevant information with the intent to harm [him],

MCSHERRY v. CITY OF LONG BEACH 3819

or that the officers knowingly supplied false information.”

Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986).

[13] In this case, the presumption may be rebutted because,

if Turley fabricated evidence regarding the victim’s descrip-

tion of the interior of the residence, he knowingly supplied

false information to Lamb. We hold that the investigation and

filing of charges by District Attorney Lamb does not insulate

Defendants from liability.

IV

CONCLUSION

Because genuine issues of material fact exist as to whether

Turley fabricated evidence, we reverse the grant of summary

judgment as to Turley on this claim and vacate and remand

the grant of summary judgment on the Monell claim against

the City and LBPD. We affirm the district court’s grant of

summary judgment to Roberson on all claims, and to Turley,

the City, and LBPD on all remaining claims.

AFFIRMED in part, REVERSED in part, VACATED in

part, and REMANDED.

The parties shall bear their own costs of this appeal.