Kelly Park v. Karen Thompson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELLY SOO PARK, No. 14-56655

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-00330-SJO-RZ

KAREN THOMPSON,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted October 4, 2016

Pasadena, California

Filed March 14, 2017

Before: Stephen Reinhardt, Ferdinand F. Fernandez, and

John B. Owens, Circuit Judges.

Opinion by Judge Reinhardt;

Partial Concurrence and Partial Dissent by

Judge Fernandez

2 PARK V. THOMPSON

SUMMARY*

Civil Rights

The panel reversed the district court’s dismissal of a

complaint and remanded in an action against City of Santa

Monica Police Detective Karen Thompson and Doe

defendants alleging defendants violated and conspired to

violate plaintiff’s right to compulsory process and a fair trial

by intimidating and attempting to dissuade a key witness

from testifying on behalf of the defense.

The panel held that plaintiff adequately alleged

misconduct by Thompson that rose to the level of substantial

interference with a defense witness in contravention of the

Compulsory Process Clause of the Sixth Amendment and the

Due Process Clause of the Fourteenth Amendment. The

panel further held that plaintiff adequately pleaded that

Thompson’s misconduct caused the witness to refuse to

testify. The fact that plaintiff was eventually acquitted did

not render the witness testimony immaterial, nor did it bar

plaintiff’s Section 1983 action stemming from violations of

her rights during the underlying criminal investigation and

prosecution. The panel concluded that the witness’s

testimony was material to plaintiff’s defense because

evidence of third-party culpability would have cast some

doubt on the government’s evidence at plaintiff’s trial.

Finally, the panel held that plaintiff pleaded sufficient facts to

state a plausible claim for civil conspiracy under Section

1983.

*

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

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

PARK V. THOMPSON 3

Concurring in part and dissenting in part, Judge

Fernandez stated that the complaint’s mere general pleading

that there was some sort of nexus between Thompson’s action

and the witness’s decision not to testify was conclusory and

insufficient. Judge Fernandez did not think that there was a

proper allegation of a substantive violation, and did not

believe that a conspiracy was effectively alleged. He agreed

with the majority that the issue of qualified immunity should

be remanded to the district court for its consideration in the

first instance.

COUNSEL

Becky S. James (argued) and Jessica W. Rosen, James &

Stewart LLP, Pacific Palisades, California, for Plaintiff-

Appellant.

Anthony P. Serritella (argued), Deputy City Attorney; Marsha

Jones Moutrie, City Attorney; Jeanette Schachtner, Chief

Deputy City Attorney; Santa Monica City Attorney’s Office,

Santa Monica, California, for Defendant-Appellee.

4 PARK V. THOMPSON

OPINION

REINHARDT, Circuit Judge:

Kelly Soo Park was tried by the state of California for the

murder of Juliana Redding. Before trial, the judge ruled that

she would not allow Park to present any evidence of third-

party culpability after Park’s key witness on that question,

Melissa Ayala, invoked her Fifth Amendment privilege and

refused to testify. Park was eventually acquitted of all

charges.

Park then sued Detective Karen Thompson and Doe

Defendants under 42 U.S.C. § 1983. Park alleged in her first

claim that Thompson violated her constitutional rights to

compulsory process and a fair trial by intimidating and

attempting to dissuade Ayala from testifying on behalf of the

defense. Park asserted a second claim against Thompson and

Doe Defendants for conspiracy to violate her civil rights

under 42 U.S.C. § 1983 by orchestrating criminal charges

against Ayala with the intention that she invoke the Fifth

Amendment and refuse to testify on Park’s behalf.1 The

district court dismissed both causes of action for failure to

state a claim, and Park appeals.2

1

Although the two claims as alleged in the pleadings are intermingled

and overlapping, we treat them separately for purposes of this opinion. On

remand, the parties and the district court may decide to analyze them

together should that prove preferable.

2

The present appeal addresses the dismissal of Park’s amended

complaint, which she filed after the district court dismissed her original

complaint with leave to amend. For the sake of clarity, we hereinafter refer

to the amended complaint as “the complaint.”

PARK V. THOMPSON 5

This appeal presents several issues of law. First, we must

decide whether Park has adequately alleged misconduct by

Thompson that rises to the level of substantial interference

with a defense witness in contravention of the Compulsory

Process Clause of the Sixth Amendment and the Due Process

Clause of the Fourteenth Amendment. Because we hold that

Park has adequately alleged such misconduct, we must decide

a second issue: whether Park adequately pleads that

Thompson’s misconduct caused Ayala to refuse to testify. We

hold that Park has pleaded a sufficient causal connection

between Thompson’s misconduct and Ayala’s unavailability.

Third, we must consider whether Park nonetheless failed to

state a claim because Ayala’s purported testimony was not

favorable and material to her criminal defense. We hold that

the fact that Park was eventually acquitted does not render

Ayala’s testimony immaterial, nor does it bar Park’s Section

1983 action stemming from violations of her rights during

the underlying criminal investigation and prosecution.

Furthermore, we conclude that Ayala’s testimony was

material to Park’s defense because evidence of third-party

culpability would have cast some doubt on the government’s

evidence at Park’s trial. Finally, we must make similar

determinations with respect to Park’s conspiracy claims.

Here, we also hold the allegations sufficient.

In view of the above, we reverse the district court’s

judgment and remand for further proceedings consistent with

this opinion.

6 PARK V. THOMPSON

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

On March 15, 2008, Juliana Redding was strangled to

death in her home in Santa Monica, California. Detective

Karen Thompson of the Santa Monica Police Department

(“SMPD”) was the lead investigator on the Redding case.

After a few months passed without any leads as to who was

responsible for Redding’s death, Detective Thompson

requested permission from SMPD to continue investigating

on her own time. She eventually matched DNA found on

Redding’s body to Park. The Los Angeles County District

Attorney’s Office (“District Attorney”) consequently charged

Park with Redding’s murder.

Park’s murder trial was set for May of 2013. As part of

her criminal defense, Park sought to introduce evidence that

Redding’s killer was actually John Gilmore, the victim’s

boyfriend at the time of her death. Gilmore had a history of

domestic violence and had previously assaulted Redding.3

3

Most of the facts set forth in this section are historical and not likely

to be a subject of dispute. Others may be disputed, but with regard to the

first claim, all are adequately pleaded in the complaint and thus sufficient

to defeat Thompson’s motion to dismiss. For purposes of this opinion

only, we deem them all to be true. We consider separately the facts that

relate to the conspiracy claim and are principally alleged on information

and belief. As to that claim, we conclude that under all the circumstances,

the allegations, with all the inferences that must be drawn in Park’s favor,

are sufficient to plead a plausible claim for conspiracy. Thus we assume

those facts to be true as well, but again solely for the purpose of the

motion to dismiss.

PARK V. THOMPSON 7

On January 31, 2013, Park’s investigator interviewed

Gilmore’s former girlfriend, Melissa Ayala. During that

interview, Ayala told the investigator that Gilmore had been

violent toward her and had choked her on at least three

occasions. According to Ayala, the first of these incidents

occurred after Ayala brought up Redding’s death and accused

Gilmore of murdering Redding. Before choking Ayala,

Gilmore responded, “You want to see how she [Redding]

felt?” On the second occasion, after Ayala again accused

Gilmore of murdering Redding, he stated, while choking

Ayala, that he was “[g]oing to show [Ayala] how [Redding]

felt.” Gilmore was convicted of domestic violence against

Ayala. During the interview with Park’s investigator, Ayala

said she was afraid of Gilmore, but she agreed to testify about

his violent behavior and the statements he made about

Redding’s death.

After learning of this potentially exculpatory evidence,

Park gave notice to the District Attorney of her intention to

call Ayala as a defense witness at trial. Detective Thompson

then contacted Ayala and attempted to dissuade her from

testifying for the defense. Among other things, Thompson

allegedly told Ayala that Gilmore–who had physically abused

Ayala in the past–was “really upset” about her statements.

Park also alleges that Thompson knowingly made false

representations to Ayala about the nature of the evidence

against Park.4 In addition, Thompson allegedly told Ayala,

“[Y]ou don’t have to talk to them [defense investigators] if

4

For example, Thompson told Ayala that the police had found “blood

on the front door handle . . . so the killer [Plaintiff] was injured during the

struggle and she left her blood DNA on the door handle.” A transcript of

the phone call may be found at pages 407–432 of the excerpts of record.

8 PARK V. THOMPSON

you don’t want to . . . [I]f they call you, you don’t even need

to call back. . . . You’re not under any obligation to do

anything.”.

Detective Thompson allegedly admitted that she “had not

spoken to Ms. Ayala for investigatory purposes,” but rather

had called Ayala only to “repair the damage the Private

Investigators had done to her relationship [with Gilmore].”

After speaking with Detective Thompson, Ayala refused any

further contact with Park’s investigators, although prior to

that conversation she had cooperated fully with them. Also,

after the conversation, she reneged on her commitment to

testify as a witness on Park’s behalf.

On information and belief, Park alleges that Thompson

and/or Defendant Does, at Thompson’s instigation, later

spoke with the El Segundo Police Department about filing

charges against Ayala for assault and criminal threats against

Gilmore based on an incident that had occurred during the

previous year. Park alleges that Detective Thompson and/or

Defendant Does told the El Segundo Police Department that

it was important to file charges against Ayala as soon as

possible because the charges would cause her to invoke the

Fifth Amendment, thereby precluding her from testifying

about Gilmore’s statements. Finally, Park alleges that as a

result of this conversation, the District Attorney charged

Ayala with felony conspiracy, assault, and criminal threats a

few weeks before Park’s scheduled trial.

On May 9, 2013, Ayala appeared in court pursuant to

Park’s subpoena to testify at trial. The Deputy District

Attorney informed Ayala’s defense attorney that if he did not

instruct Ayala to invoke her Fifth Amendment right against

self-incrimination, then she would move to “recuse” him.

PARK V. THOMPSON 9

Ayala invoked her Fifth Amendment right and declined to

testify.5 After Ayala refused to testify, the judge presiding

over the criminal case precluded the presentation of any

evidence relating to Park’s third-party culpability defense.

Park was tried and acquitted of all criminal charges.

Park’s defense counsel elicited favorable testimony from the

prosecution’s DNA expert, who testified that Park’s DNA

could have been transferred to Redding’s body by the actual

killer when he wiped down the apartment to eliminate

fingerprints or DNA evidence. Park alleges that even though

she was ultimately acquitted, her acquittal was far less certain

in the absence of Ayala’s testimony. Without that testimony,

Park was precluded from presenting evidence of third party

culpability at trial and was limited to presenting solely a

failure of proof defense.

II. Procedural History

Park filed her complaint in district court asserting two

causes of action against Detective Thompson and Defendants

Does 1–10: (1) deprivation of civil rights, 42 U.S.C. § 1983,

by violation of the Sixth Amendment’s Compulsory Process

Clause and denial of her right to a fair trial under the Due

Process Clause of the Fourteenth Amendment; and (2)

5

Park’s complaint also alleges that Detective Thompson interfered

with two other witnesses, Park’s associate Ronnie Case and Park’s fiancé

(now husband), Thomas Chronister. The district court decision does not

mention these allegations.

10 PARK V. THOMPSON

conspiracy to violate civil rights, 42 U.S.C.§ 1983, alleging

violation of the same two constitutional rights.6

The district court granted Detective Thompson’s motion

to dismiss the complaint without leave to amend. With

respect to Park’s claim against Thompson individually: first,

the district court’s opinion was not entirely clear as to

whether the district judge held that Park had not adequately

alleged that Thompson’s conduct constituted substantial

interference. Second, the district court concluded that Park

had “not pleaded sufficient facts leading to a reasonable

inference that it was Defendant’s alleged persuasion that

caused Ayala not to testify.” Third, the district court

concluded that the complaint failed to establish that Ayala’s

testimony would have been “material” to Park’s third party

culpability defense. The district judge reasoned that because

Park would have obtained, and did obtain, the same result

(acquittal), regardless of whether Ayala’s testimony was

presented to the jury, her Section 1983 claims were

precluded. In addition, because Ayala’s testimony was “not

actually ‘exculpatory evidence,’” the district judge concluded

that its exclusion did not materially prejudice Park’s defense.

For the same reasons, as well as others, the district judge

dismissed Park’s conspiracy claim without leave to amend.7

6

Park’s original complaint also asserted a cause of action for

declaratory relief, but she later voluntarily dismissed this claim. This

appeal deals only with Park’s Section 1983 claim against Thompson

individually and her conspiracy claim against Thompson and others.

7

Despite the fact that Park’s complaint pleads a claim for civil

conspiracy under Section 1983, the district court erroneously construed

her conspiracy claim as a Section 1985 claim, apparently on the

assumption that conspiracy claims must be brought under that section. The

law is to the contrary. “[I]t is permissible to state a civil cause of action for

PARK V. THOMPSON 11

Park appeals the district court’s dismissal of her claim

against Thompson individually and her conspiracy claim

against Thompson and Doe Defendants.

STANDARD OF REVIEW

We review de novo a district court’s dismissal for failure

to state a claim under Rule 12(b)(6). Lee v. City of Los

Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We accept the

plaintiff’s allegations as true and view them in the light most

favorable to her. New Mexico State Inv. Council v. Ernst &

Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011).

“Conclusory allegations of law . . . are insufficient to defeat

a motion to dismiss.” Lee, 250 F.3d at 679. Moreover,

dismissal is appropriate if the complaint fails to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “If there are two

alternative explanations, one advanced by defendant and the

other advanced by plaintiff, both of which are plausible,

plaintiff’s complaint survives a motion to dismiss under Rule

12(b)(6).” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

conspiracy, based on § 1983.” Cohen v. Norris, 300 F.2d 24, 27 (9th Cir.

1962). “Hence, the fact that conspiracy is alleged here does not mean that

the plaintiff is invoking § 1985(3).” Id. The district court was incorrect to

treat Park’s conspiracy claim as a Section 1985 claim, given that she

pleaded this claim under Section 1983 as permitted by our precedents and

did not allege any “racially or otherwise ‘invidiously discriminatory

animus’ behind the conspirator’s action” as required under Section

1985(2), (3). Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see

also Bretz v. Kelman, 773 F.2d 1026, 1029–30 (9th Cir. 1985) (“[A]n

allegation of class-based animus is an essential requirement of a claim

under the second clause of § 1985(2).”).

12 PARK V. THOMPSON

DISCUSSION

I. Section 1983 Claim for Violation of Sixth Amendment

Right to Compulsory Process and Fourteenth

Amendment Right to a Fair Trial

“To make out a cause of action under Section 1983, [the]

plaintiff[] must plead that (1) the defendant[] acting under

color of state law (2) deprived plaintiff[] of rights secured by

the Constitution or federal statutes.” Williams v. California,

764 F.3d 1002, 1009 (9th Cir. 2014) (internal quotation marks

omitted). In the present case, it is undisputed that Detective

Thompson was acting under color of state law. Consequently,

Park’s Section 1983 claim must be allowed to proceed if she

pleaded sufficient facts to state a claim for violation of her

constitutional rights under the Sixth and Fourteenth

Amendments.8

The Compulsory Process Clause of the Sixth Amendment

provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have compulsory process for obtaining

witnesses in his favor.” U.S. Const. amend VI. The right to

compulsory process encompasses “[t]he right to offer the

8

The analysis under the Sixth and Fourteenth Amendments is “nearly

identical.” United States v. Bohn, 622 F.3d 1129, 1137 n.5 (9th Cir. 2010);

see also United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982)

(“Having borrowed much of our reasoning with respect to the Compulsory

Process Clause of the Sixth Amendment from cases involving the Due

Process Clause of the Fifth Amendment, we have little difficulty holding

that at least the same materiality requirement obtains with respect to a due

process claim.”). “Therefore, we do not unduly concern ourselves with

drawing fine distinctions between cases interpreting the Sixth Amendment

Compulsory Process Clause and those interpreting the . . . Due Process

Clause.” United States v. Juan, 704 F.3d 1137, 1141 n.1 (9th Cir. 2013).

PARK V. THOMPSON 13

testimony of witnesses, and to compel their attendance, if

necessary.” Washington v. Texas, 388 U.S. 14, 18–19 (1967).

As “a fundamental element of due process of law,” the right

to compulsory process is incorporated against the states

through the Due Process Clause of the Fourteenth

Amendment. See id. at 19, 20.

The Supreme Court has established that the government

violates due process when its conduct “effectively dr[ives a]

witness off the stand.” Webb v. Texas, 409 U.S. 95, 98 (1972)

(per curiam) (holding right to present a defense was violated

when the trial judge singled out and admonished a defense

witness about the risks of perjury in “unnecessarily strong

terms”). We have further explained that, under Webb, “[i]t is

well established that ‘substantial government interference

with a defense witness’s free and unhampered choice to

testify amounts to a violation of due process.’” Ayala v.

Chappell, 829 F.3d 1081, 1111 (9th Cir. 2016) (quoting Earp

v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005)). Although

Webb dealt only with judicial misconduct, wrongful conduct

by prosecutors or law enforcement officers can also constitute

“substantial government interference” with a defense

witness’s choice to testify. See, e.g., United States v. Vavages,

151 F.3d 1185, 1189 (9th Cir. 1998) (“[T]he conduct of

prosecutors, like the conduct of judges, is unquestionably

governed by Webb.”); United States v. Little, 753 F.2d 1420,

1439–40 (9th Cir. 1984) (analyzing claim of defense witness

intimidation by IRS agents); see also Ayala, 829 F.3d at 1111

(explaining that allegations of witness intimidation by

detective, taken as true, would amount to constitutional

violation).

The Supreme Court has also made clear that “the Sixth

Amendment does not by its terms grant to a criminal

14 PARK V. THOMPSON

defendant the right to secure the attendance and testimony of

any and all witnesses,” but only “witnesses in his favor.”

United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)

(emphasis in original). Consequently, even where there may

have been governmental misconduct, a criminal defendant

cannot establish a violation of his compulsory process right

unless he “make[s] some plausible showing” of how the

potential witness’s “testimony would have been both material

and favorable to his defense.” Id.; see also Cacoperdo v.

Demosthenes, 37 F.3d 504, 509 (9th Cir. 1994) (holding Sixth

Amendment witness interference claim fails without showing

of relevance and materiality).

To state a claim for violation of her fair trial and

compulsory process rights, Park must therefore adequately

plead (1) that Thompson’s alleged conduct amounts to

“substantial government interference” with a defense witness;

(2) that Thompson’s conduct caused Ayala not to testify; and

(3) that Ayala’s testimony would have been favorable and

material. As we have explained previously, because we are

reviewing a motion to dismiss, we treat Park’s allegations as

if they were true and draw all inferences in her favor for the

limited purpose of this opinion. See Arizona Students’ Ass’n

v. Arizona Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016).

In this light, we conclude that Park has adequately pled each

of the three requisite elements.

1. Substantial Interference

To make out a claim against Thompson, Park must show

not only that Thompson engaged in misconduct, but also that

such misconduct was causally connected to Ayala’s refusal to

testify.

PARK V. THOMPSON 15

a. Misconduct

The “substantial interference inquiry is extremely fact

specific” and requires an evaluation of the totality of the

circumstances. United States v. Juan, 704 F.3d 1137, 1142

(9th Cir. 2013). It constitutes substantial misconduct for a

prosecutor or a law enforcement officer to “intimidate[] or

harass[] the witness to discourage the witness from

testifying.” Bohn, 622 F.3d at 1138 (quoting Williams v.

Woodford, 384 F.3d 567, 601 (9th Cir. 2004); see also Ayala,

829 F.3d at 1111 (explaining that it could amount to

substantial interference with witnesses if it were proved that

detective “threatened, coerced, manipulated, and/or

intimidated potential and actual witnesses,” including by

threatening to investigate witness’s wife for smuggling drugs

into prison). Although it is permissible for law enforcement

to contact potential witnesses before trial for investigatory

purposes, see Little, 753 F.2d at 1440, we have cautioned that

“abuses can easily result when officials elect to inform

potential witnesses of their right not to speak with defense

counsel.” Cacoperdo, 37 F.3d at 509 (internal quotation

marks omitted).

In the present case, Detective Thompson contacted Ayala

after Park gave notice to the District Attorney of her intention

to use Ayala as a defense witness at her criminal trial.9

During the course of the phone conversation, Thompson told

9

A simple, investigatory phone call to a potential witness does not

amount to misconduct, see Little, 753 F.2d at 1440, but Detective

Thompson did not call Ayala for investigatory purposes: Thompson stated

in a sworn declaration “that the ‘only reason’ for her call to Ms. Ayala was

to ‘repair the damage [Park’s] Private Investigators had done to [Ayala’s]

relationship with [Mr. Gilmore].’”

16 PARK V. THOMPSON

Ayala that “John [Gilmore] was really upset about the whole

thing because he–he feels like they just made you lose faith

in him, I guess.” Park asserts that, in light of Gilmore’s

“history of violence towards Ms. Ayala,” Thompson’s

statements constitute thinly veiled threats that Gilmore might

retaliate against Ayala if she were to testify. Accepting Park’s

allegations as true and viewing them in the light most

favorable to her, it is plausible to infer that Thompson

intended to intimidate Ayala, a domestic violence victim, by

informing her that Gilmore, her abuser, was “really upset” by

her potential testimony.

Moreover, Park contends that Thompson’s actual motive

in asserting Gilmore’s innocence, Park’s guilt, and the

defense team’s dishonesty was to dissuade Ayala from

testifying. See Bohn, 622 F.3d at 1138; see also Smith v.

Baldwin, 466 F.3d 805, 824 (9th Cir. 2006)10 (explaining that

the intent at issue in evaluating prosecutorial misconduct “is

the intent to cause a witness not to testify in a particular

manner or not to testify at all,” but intent is not at issue where

intimidation or coercion is obvious), vacated by Smith v.

Baldwin, 510 F.3d 1127 (9th Cir. 2007) (en banc). During the

phone call in question, Thompson declared, among other

things, that Gilmore was certainly innocent and that Park was

in fact the killer: “And first, what I want to tell you is that

John [Gilmore] is not the killer. . . . But the two people who

showed up at your house two weeks ago . . . they are private

investigators who were hired by the defense team that is

representing the killer [Park] [in] this case.”

10

Cited not as precedent but for the persuasiveness of its reasoning.

See 9th Cir. Gen. Order 5.5(d).

PARK V. THOMPSON 17

Park further alleges that Thompson made false

representations of the evidence against Park, incorrectly

stating, for example, that Park “left her blood DNA on the

door handle.” Detective Thompson also encouraged Ayala

not to “believe what they’re [the defense team] saying,”

because they were “going to tell every lie they can to try and

get [Park] off.” Thompson described the defense team as

“private investigators who are hired by [Park’s] defense

attorneys to try and shoot holes in – in our prosecution of

their – of the bad guy” and stated that they “bent the facts to

try to, you know, make you think something else.” Taken

together, the allegations regarding Thompson’s

misrepresentation of the evidence against Park, coupled with

her statements about Park’s guilt, Gilmore’s innocence, and

the defense investigators’ duplicity (as well as her statement

that Gilmore was “really upset” with Ayala), can reasonably

be interpreted as adequately pleading a deliberate intent on

the part of Thompson to intimidate and otherwise attempt to

persuade Ayala to refuse to testify on behalf of the defense.11

b. Causation

The district judge concluded that Park “has not pleaded

sufficient facts leading to a reasonable inference that it was

Defendant’s alleged persuasion that caused Ayala not to

testify.” He reasoned that the telephone conversation between

Thompson and Ayala was the only fact alleged connecting

Thompson to Ayala. In his view, because “various actors,”

11

Because the misconduct alleged above is sufficient, we do not

consider in this section the additional conduct that primarily relates to the

conspiracy claim involving the Doe defendants. For similar reasons, we

do not consider that additional conduct in subsection 2 relating to

causation or subsection 3 relating to materiality.

18 PARK V. THOMPSON

including the deputy district attorney, Ayala’s defense

counsel, and the trial judge, “were involved in the time

between the telephone conversation and Ayala’s failure to

testify,” there was an insufficient causal link between

Thompson’s phone call and Ayala’s choice not to testify. We

disagree: Park’s complaint alleges sufficient facts to establish

a causal connection between Thompson’s conduct and

Ayala’s refusal to testify.

Although our precedent clearly requires some “causal

link” between the government’s conduct and the witness’s

decision not to testify, see Juan, 704 F.3d at 1142, our cases

do not clearly specify how such a requirement may be

satisfied. Other circuits to address the issue have articulated

a variety of causation standards for claims of witness

interference. See Griffin v. Davies, 929 F.2d 550, 553 (10th

Cir. 1991) (“There must be a plausible showing that an act by

the government caused the loss or erosion of testimony that

was both material and favorable to the defense.”); United

States v. Hoffman, 832 F.2d 1299 (1st Cir. 1987) (“[A]n

accused must, at a minimum, demonstrate some plausible

nexus between the challenged government conduct and the

absence of certain testimony.”); United States v. Weddell, 800

F.2d 1404, 1412 (5th Cir.), opinion amended on denial of

reh’g, 804 F.2d 1343 (5th Cir. 1986) (remanding to the

district court for an evidentiary hearing on “whether or not

[the witness], except for the actions of the government, would

have indeed testified for her husband and that her testimony

would have had any effect on the jury verdict.” (emphasis

added)); United States v. Silverstein, 732 F.2d 1338, 1345–46

(7th Cir. 1984) (concluding that trial judge’s misstatements

to a witness about the potential for a perjury prosecution were

not the “decisive factor in [the witness’s] decision not to

testify” and any error was therefore harmless (emphasis

PARK V. THOMPSON 19

added)); United States v. Blackwell, 694 F.2d 1325, 1343

(D.C. Cir. 1982) (where “the witness herself never refuses to

testify” because of “the lack of a direct nexus between the

judge’s and prosecutor’s remarks and [the defendant’s] loss

of [the witness’s] testimony.”).

To decide the present case, however, we need not adopt

any particular causation standard because the complaint in the

present case contains sufficient factual allegations to preclude

us from affirming on causation grounds under any reasonable

standard. Park’s defense team made a substantial effort to

obtain Ayala’s testimony, including serving her with a

subpoena. Before Detective Thompson’s phone call, Ayala

had committed to testifying for the defense and had

cooperated with defense investigators. After the phone

conversation, however, Ayala refused any further contact

with the defense investigators and subsequently declined to

testify.12 In light of all of the allegations taken together,

12

Although it is true, as the district judge noted, that the actions of the

trial judge, the prosecutor, Ayala’s defense lawyer, and Ayala herself

represent contributing causes to Ayala’s ultimate refusal to testify, the fact

that the actions of other individuals also contributed to Ayala’s decision

does not mean that Thompson’s phone call did not have a sufficient causal

connection to Ayala’s refusal: the subsequent actions of the prosecutor,

judge, and Ayala’s lawyer are not, drawing all inferences in Park’s favor,

unforeseeable intervening causes that would break the chain of proximate

causation set in motion by Thompson’s acts of persuasion. Causation in

this case is, moreover, ultimately a question for the finder of fact to

decide. See Farr v. NC Mach. Co., 186 F.3d 1165, 1171 (9th Cir. 1999)

(“As the Supreme Court emphasized, ‘[t]he issues of proximate causation

and superceding cause involve application of law to fact, which is left to

the factfinder, subject to limited review.’”) (quoting Exxon Co., U.S.A. v.

Sofec, Inc., 517 U.S. 830, 840–41 (1996)).

20 PARK V. THOMPSON

including that Thompson called Ayala for an admittedly non-

investigatory purpose, misrepresented the evidence against

Park, implicitly suggested that Ayala’s former abuser was

upset with her, proclaimed Gilmore’s innocence and Park’s

guilt, and maligned the defense investigators, we conclude

that Park has adequately pleaded a causal connection between

Thompson’s phone call and Ayala’s decision to renege on her

original commitment to testify for the defense.13

Insofar as the dissent suggests that either Supreme Court precedent or

our precedent binds us to apply a “but for” causation standard, it misreads

both our precedents (as explained above) and those of the Supreme Court.

See Dissenting Op. at 36 (citing Burrage v. United States, __ U.S. __, __,

134 S. Ct. 881, 887–89, 187 L. Ed. 2d 715 (2014)). Burrage did not

provide a causation standard for compulsory process claims, but rather

interpreted the phrase “results from” in the Controlled Substances Act to

encompass the rudimentary causation principle of actual cause. See 134

S. Ct. at 887–88, 892. This statutory interpretation does not control our

constitutional analysis here.

Nor does our conclusion that Park has adequately pleaded causation

rely entirely, or even partially, on “conclusory information and belief

allegations.” Dissenting Op. at 36. To the contrary, taking the facts

pleaded in the complaint in the light most favorable to Park, we simply

conclude that they permit a “plausible” causal connection between

Thompson’s phone call, Ayala’s refusal immediately thereafter to

communicate further with Park’s defense team, and her subsequent refusal

to testify.

13

Thompson cites one case, Smiddy v. Varney, 803 F.2d 1469 (9th

Cir. 1986), to support her argument that the prosecutor’s actions broke the

chain of causation between her phone call and Ayala’s refusal to testify.

Smiddy, however, is inapposite for several reasons. First, that case deals

only with post-trial calculation of damages rather than the existence of a

cause of action. See id. at 1473 (“[T]he independent act of the prosecutor

four days after Smiddy’s arrest, unless shown to have been improperly

influenced by the police officers, cut off further liability for damages

suffered thereafter.”). Second, Smiddy applies to “negligent conduct,” not

PARK V. THOMPSON 21

2. Materiality

Park must also “make some plausible showing” of how

the potential witness’s testimony “would have been both

material and favorable to [her] defense” to establish a

violation of her compulsory process and fair trial rights. See

Valenzuela-Bernal, 458 U.S. at 867. It is indisputable that

Ayala’s testimony would have been favorable to Park’s

defense, and Thompson does not contest that fact. Park must

therefore adequately allege only that Ayala’s testimony

would have been material. See id.

a. Park’s acquittal did not render Ayala’s testimony

immaterial.

Thompson argues that Park’s acquittal bars her Section

1983 action, apparently on the theory that Ayala’s testimony

was rendered immaterial by Park’s acquittal. The district

judge at one point in his brief order “assum[ed] that [Park’s]

state court acquittal is not a bar to her Section 1983 claim,”

although he characterized the question “[w]hether a Section

1983 claim survives absent a conviction in an underlying

criminal action” as an open question in our circuit. He

nonetheless held that the exclusion of Ayala’s testimony

would not have been “material” to Park’s defense because,

even with the testimony, Park “would have obtained the same

result.”

to intentional misconduct by law enforcement officers. See id. at 1471,

1473 (recognizing that “pressure, undue influence, or knowing

misstatements by police could. . . extend the chain of causation”). Third,

Smiddy dealt with a Section 1983 claim for an unconstitutional arrest. See

id. at 1470. All in all, the causation analysis in that case is not relevant to

Park’s compulsory process and fair trial claims.

22 PARK V. THOMPSON

The district court was incorrect to characterize this issue

as an open question, and his order is inconsistent with the

established law of this circuit: our binding precedent clearly

explains that an acquittal does not bar a Section 1983 action

based on a due process violation during an underlying

criminal proceeding. Haupt v. Dillard, 17 F.3d 285, 287–88

(9th Cir. 1994). In Haupt, we held that “acquittal does not

erase all injury” but instead “speaks only to the amount of

damages.” Id. at 287. The defendant in Haupt was acquitted

despite the “egregious behavior” of a detective and a deputy

district attorney, who “threatened” and “intimidated” the trial

judge to the point “that [he did] not dare . . . give the advisory

verdict of acquittal” as he had originally intended. Id.

(Internal quotation marks omitted) (alteration in original).

The defendant then sued the detectives and municipal

defendants under Section 1983. Although “there was no

conviction” in the underlying criminal trial, we held that “the

alleged violation of Haupt’s due process rights was complete

when the trial judge changed his jury instructions because of

[the detective’s and prosecutor’s] intimidation.” Id. at 288.

Consequently, we held that Haupt’s acquittal did not defeat

his claim for denial of due process. Id.

In addition to her compulsory process claim, Park, like

the plaintiff in Haupt, claims a violation of her right to a fair

trial under the Due Process Clause. This fair trial claim

necessarily incorporates her compulsory process claim, as the

right to obtain witnesses in one’s favor is part of the due

process “right to fairly ‘present a defense.’” United States v.

Juan, 704 F.3d 1137, 1141 (9th Cir. 2013) (quoting Webb,

409 U.S. at 98). Consequently, our analysis of Park’s

overlapping compulsory process and due process claims is

essentially the same, see note 8, supra, and her acquittal does

not bar either one.

PARK V. THOMPSON 23

Park was deprived of her principal and apparently sole

defense—that a third party was guilty of the murder—due to

Thompson’s alleged interference with Ayala’s testimony. The

circumstances of Park’s trial stand in stark contrast to those

in Valenzuela-Bernal, the Supreme Court’s seminal witness

interference case, in which the defendant did not know

whether the deported witnesses could actually aid in his

defense, 458 U.S. at 861, 872–74. Here, the state’s alleged

interference with her key witness entirely deprived Park of

her principal defense, thereby altering the entire trajectory of

her criminal trial.

A trial in which the principal defense has been effectively

barred cannot be reconciled with the Due Process Clause,

which “guarantees that a criminal defendant will be treated

with that fundamental fairness essential to the very concept

of justice.” Valenzuela-Bernal, 458 U.S. at 872 (internal

quotation marks and citation omitted).14 The constitutional

violation in question here therefore includes not simply the

fact that Ayala’s testimony was improperly suppressed, but

also the consequent elimination of Park’s principal (if not her

14

A defense, of course, must be distinguished from simply punching

holes in the prosecution’s case by pointing out its weaknesses, which was

the basis of Park’s acquittal. See United States v. Spencer, 981 F.2d 1083,

1086 (9th Cir.) (distinguishing between failure of proof and defense of

misidentification), opinion amended and superseded on denial of reh’g,

1 F.3d 742 (9th Cir. 1992); cf. United States v. Scott, 437 U.S. 82, 98 n.11

(1978) (distinguishing between “acquittal on the merits” and the release

of a defendant “for reasons required by the Constitution or laws, but which

[reasons] are unrelated to factual guilt or innocence” and noting that the

Court has no difficulty in ascertaining such distinctions).

24 PARK V. THOMPSON

only) defense.15 Park’s allegations thus plausibly establish an

“absence of [] fairness [that] fatally infected the entire trial,”

Valenzuela-Bernal, 458 U.S. at 872 (internal quotation marks

and citation omitted), in violation of her constitutional rights

under the Due Process Clause of the Fourteenth Amendment.

Park’s acquittal did not erase Park’s constitutional injury,

see Haupt, 17 F.3d at 187, nor does it mean that Ayala’s key

testimony was not material. It would be a different case if

Ayala were one of many witnesses willing to testify to

Gilmore’s culpability: if other witnesses were available to

provide a predicate for Park’s third-party culpability defense,

then Ayala’s suppressed testimony might not have been

material, and Park’s trial would have been “fair.” Given that

Park’s principal defense was completely suppressed,

however, Ayala’s testimony was not somehow suddenly

rendered immaterial at the moment of Park’s acquittal. See id.

at 288. Thus, under Haupt, Park adequately alleges a

violation of her due process right to a fair trial based on the

suppression of Ayala’s testimony, regardless of the fact that

she was eventually acquitted. We recognize that the Eleventh

Circuit has created a conflict with Haupt in a subsequent

15

The trial judge explained that Ayala’s decision not to testify was

dispositive as to the admissibility of Park’s third party culpability defense:

“And if today Miss Ayala is asserting her 5th Amendment rights and not

going to testify, then I am going to preclude you from mentioning

anything about the third party culpability defense;” “[I]f you don’t have

a witness that is – can testify to [Gilmore’s statements], then it is not going

to come in and the jury is not going to hear it, and you are not going to

mention it in your opening statement. So the rubber meets the road today;”

“[I]f you can’t get the connecting evidence in [i.e. Ayala’s non-hearsay

testimony as to Gilmore’s statements while choking her, connecting him

to Redding’s murder], none of that other stuff [i.e. ongoing fighting

between Redding and Gilmore, including past violent outbursts] is coming

in”.

PARK V. THOMPSON 25

compulsory process case. See Kjellsen v. Mills, 517 F.3d

1232, 1239–40 (11th Cir. 2008).16 We see no reason,

however, to abandon Haupt in favor of the Eleventh Circuit’s

approach in Kjellsen.17 That decision is not only inconsistent

16

We also recognize that in the Brady context, the Sixth and Tenth

Circuits have held Section 1983 claims are barred when the plaintiff was

acquitted. See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999);

McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988); see

also Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir.1998) (same). The

Seventh Circuit has explicitly declined to decide whether an acquittal bars

a subsequent Section 1983 action based on Brady violations. See Mosley

v. City of Chicago, 614 F.3d 391, 397 (7th Cir. 2010) (“Our circuit has not

directly resolved whether a plaintiff can assert a claim for a Brady

violation when the trial resulted in an acquittal.”).

17

We note that in Kjellsen, unlike in the case before us, the alleged

constitutional violation had no effect on the basic course of proceedings

of the trial nor on the issues that the fact-finder was required to resolve.

The plaintiff in that case sued for violation of his compulsory process right

based on the failure of the forensic sciences division of the Georgia

Bureau of Investigation to reveal an exculpatory retest of his blood alcohol

levels before his criminal trial for driving under the influence and other

charges. 517 F.3d at 1235–36. (This alleged violation was probably more

accurately characterized as a Brady violation, but the plaintiff did not

pursue relief under that theory. Id. at 1239 n.2.) Because the retest results

reflected similar numbers to those obtained from a retest performed by the

defense, these “additional test results . . . would not have materially

improved the information in the defense’s possession,” and therefore

“could not reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.” Id. at 1240. Therefore,

the materiality test was not satisfied. Id. In contrast, Thompson’s

misconduct in the present case not only deprived Park of potentially

helpful information, but also altered the entire trajectory of her trial by

wholly precluding the third party culpability evidence, which might have

secured her acquittal regardless of the deficiencies in the prosecutor’s

DNA evidence. This evidence, unlike the test results in Kjellsen, would

have “materially improved” her defense and “put the whole case in . . . a

different light.” Id.

26 PARK V. THOMPSON

with our binding precedent in Haupt, but also fails to

recognize the distinction between a criminal prosecution and

a Section 1983 action.

The concept of “materiality” does not carry a static and

uniform meaning across these two different contexts. In a

criminal case, in which the defendant seeks reversal of his

conviction, “materiality” means material to the conviction. In

other words, in a criminal case, suppressed evidence or

testimony is only material if it could have affected the fact-

finder’s determination whether the defendant is guilty beyond

a reasonable doubt. See Valenzuela-Bernal, 458 U.S. at 874

(explaining testimony is material “only if there is a

reasonable likelihood that [it] could have affected the

judgment of the trier of fact”).

Valenzuela-Bernal, for example, dealt solely with the

materiality of evidence in a criminal case in which the

defendant was convicted. It stands for an elementary

proposition of our criminal law: we do not reverse

convictions based on the absence of testimony, evidence, or

even effective assistance of counsel, unless the convicted

defendant can demonstrate that he was somehow

“prejudiced” by the deprivation. 458 U.S. at 868. In

Valenzuela-Bernal, the Supreme Court unsurprisingly refused

to reverse a conviction simply because the government

deported two potential witnesses, especially given that the

defendant “made no attempt to explain” how the deportees’

testimony could have assisted his defense. Id. at 861, 872–74.

In short, the error was not “material” to the relief sought—the

reversal of the conviction.

In contrast, in a Section 1983 action, the plaintiff is not

seeking reversal of his conviction, but rather compensation

PARK V. THOMPSON 27

for the violation of his constitutional rights during a previous

criminal trial. In other words, he is seeking to vindicate his

right to a procedurally fair criminal trial. Consequently, the

materiality test in a Section 1983 case is directed towards a

different question: suppressed evidence or testimony is

material only if it affected the question whether the defendant

was deprived of a fair trial. The fact that a defendant was

acquitted has little to do with whether the trial was fair, see

Haupt, 17 F.3d at 287, and therefore has little to do with

materiality in the context of a Section 1983 claim.

The Eleventh Circuit mechanically imported the

materiality requirement, as developed in criminal cases like

Valenzuela-Bernal, into its Section 1983 analysis without

recognizing this key distinction. Relying exclusively on

Valenzuela-Bernal, the Eleventh Circuit held that an acquitted

defendant can never state a claim for a violation of his

compulsory process right or his due process right to a fair

trial because the violation will never be “material.” Kjellsen,

517 F.3d at 1239. Kjellsen’s premise that a constitutional

deprivation is only “material” if it would have resulted in a

different verdict would mean that an acquittal nullifies any

Section 1983 claim by an acquitted criminal defendant. This

premise is wholly inconsistent with Haupt, which explicitly

holds that an acquittal does not bar a Section 1983 claim for

due process violations.

The Eleventh Circuit’s failure to recognize that

materiality must have a different meaning in Section 1983

cases than in criminal cases was an error that led that circuit

to effectively bar all Section 1983 claims by acquitted

defendants and thus to create a direct conflict with our

precedent in Haupt. We decline to follow the Eleventh

Circuit’s approach, and instead reaffirm our binding rule:

28 PARK V. THOMPSON

Park’s acquittal does not render Ayala’s allegedly suppressed

testimony immaterial, nor does it preclude her from bringing

a Section 1983 action to vindicate her right to a fair trial.

Thompson contends that Haupt has been effectively

nullified because it relied on Cooper v. Dupnik, 963 F.2d

1220 (9th Cir. 1992) (en banc), which was later overruled by

the Supreme Court in Chavez v. Martinez, 538 U.S. 760

(2003). This argument is without merit. Cooper held that a

Miranda violation was actionable under Section 1983 despite

the fact that the defendant was “never formally . . . charged

in court and [] none of his statements ever were offered in

evidence to his potential detriment.” Cooper, 963 F.2d at

1245. This holding was overturned by Chavez, in which a

plurality of the Supreme Court said that an officer’s failure to

read Miranda warnings to a defendant before interrogation

violates only “judicially crafted prophylactic rules” and, for

that reason, was not actionable under Section 1983.18 Chavez,

538 U.S. at 772. Critically, Chavez simply does not address

cases in which a defendant’s “core constitutional right[s]” are

violated, see id. at 772, let alone hold that such violations

may not serve as the basis for a Section 1983 action if the

defendant has been acquitted. In short, Chavez in no way

undermines Haupt, and regardless of whether the Chavez

18

Justice Souter, joined by Justice Breyer, concurred in the judgment

only, on an even more limited basis. The concurrence, without which the

result in Chavez would not have garnered a majority of the Court,

explicitly declined to decide “whether the absence of Miranda warnings

may be a basis for a § 1983 action under any circumstance” because that

question was “not before the Court.” Chavez, 538 U.S. at 779 n.* (Souter,

J., concurring in the judgment) (emphasis added).

PARK V. THOMPSON 29

plurality or Justice Souter’s even more limited concurring

opinion controls, Haupt remains the law of the circuit.19

b. Ayala’s testimony was material to Park’s defense.

The district court also concluded that Park failed to

adequately plead materiality because Gilmore’s statements

alone were not sufficient to lead to a reasonable inference that

he was the murderer and therefore Ayala’s testimony was

“not actually ‘exculpatory evidence.’” In his analysis, the

district judge required a higher degree of exculpation than is

appropriate under our precedents. We reverse and conclude

that Park has adequately pleaded that Ayala’s potential

19

In a subsequent case in this court, the three judges on the panel each

offered non-binding comments on an analogous question: whether a Brady

violation is actionable under Section 1983 following an acquittal. See

Smith v. Almada, 640 F.3d 931 (9th Cir. 2011). The majority opinion,

authored by Judge James Gwin, of the Northern District of Ohio sitting by

designation, address the effect of an acquittal because the author, along

with Ninth Circuit Judge Ronald Gould, concluded that the undisclosed

evidence was immaterial for reasons separate from the acquittal. See id.

at 939–40. In a separate special concurrence to his majority opinion, Judge

Gwin expressed his own view that had the panel been required to reach the

question, he would have held that Brady-based Section 1983 claims are

disallowed in the absence of a conviction. Id. at 945. Judge Gould also

filed a separate concurrence, indicating that if a case before him properly

presented the issue, he would be “inclined” to hold that an acquittal bars

Brady-based claims. Id. at 940. Judge D.W. Nelson dissented on the

ground that the undisclosed evidence was material, and its suppression

therefore violated the Brady doctrine. Id. at 946. Consequently, she would

have reached the question of an acquittal’s effect and would have held that

an acquittal does not bar a Brady-based Section 1983 claim. Id. at 948. In

the end, Almada did not reach the Haupt question, and Haupt remains

controlling precedent on the question before us: an acquittal does not

preclude a Section 1983 claim arising out of a fundamental constitutional

violation.

30 PARK V. THOMPSON

testimony was material. Materiality does not require

incontrovertible evidence of exculpation; to the contrary,

evidence that tends to “cast doubt” on the government’s case

qualifies as material. See United States v. Leal-Del Carmen,

697 F.3d 964, 972 (9th Cir. 2012); see also Gov’t of Virgin

Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992)

(concluding witness’s excluded testimony was favorable and

material where “it could have served to cast doubt on

[victim’s] identification”).

In the present case, were Ayala to have testified that

Gilmore choked her while referring to Redding’s death, it

would have been sufficient to permit Park to present a third

party culpability defense under California law. Ayala’s

testimony about Gilmore would have satisfied California’s

threshold standard for introducing evidence of third party

culpability, which merely requires “direct or circumstantial

evidence linking the third person to the actual perpetration”

of the murder. People v. Hall, 718 P.2d 99, 104 (Cal. 1986)

(defining standard that an accused must meet under California

law for admission of evidence of third-party culpability).

Consequently, the trial judge would likely have allowed Park

to mount a third-party culpability defense under Hall if Ayala

had been willing to testify.20 Even if circumstantial evidence

of third party culpability is not itself sufficient to compel

acquittal, it would have been sufficient to “cast doubt” on the

government’s evidence and would therefore have been

material. Leal-Del Carmen, 697 F.3d at 972.

20

See supra n.14.

PARK V. THOMPSON 31

II. Civil Conspiracy Claim Under Section 1983

Park also alleges that Thompson “orchestrated the

charging of Ms. Ayala to ensure that she did not testify for

the defense” and that, on information and belief, she brought

about that result in collaboration with a number of Doe

Defendants.21 After the District Attorney received notice that

Park planned to call Ayala as a defense witness, and after

Detective Thompson’s phone conversation with Ayala,

Thompson and/or a Doe defendant allegedly contacted the El

Segundo Police and convinced an officer to initiate charges

against Ayala. The District Attorney then unexpectedly

brought felony criminal charges against Ayala stemming

from a physical dispute with Gilmore approximately a year

earlier.

Shortly afterwards, at Park’s criminal hearings, Ayala

declined to testify at Park’s trial because of these pending

charges and after the Deputy District Attorney threatened to

“recuse” her attorney if he did not advise her to invoke her

Fifth Amendment privilege. Following Ayala’s refusal to

testify, the District Attorney dismissed the felony charges,

and Ayala received a probationary sentence after pleading no

contest to a misdemeanor charge. Based on these facts, as

well as information and belief, Park alleged that Thompson

colluded with others to arrange for the filing of criminal

21

Although “[a]s a general rule, the use of ‘John Doe’ to identify a

defendant is not favored,” in circumstances “where the identity of alleged

defendants will not be known prior to the filing of a complaint . . . the

plaintiff should be given an opportunity through discovery to identify the

unknown defendants, unless it is clear that discovery would not uncover

the identities, or that the complaint would be dismissed on other grounds.”

Gillespie v. Civiletti, 629 F.2d 637, 642–43 (9th Cir. 1980). Here, Park is

entitled to discovery on the identity of the Does.

32 PARK V. THOMPSON

charges against Ayala in an effort to make her unavailable to

testify at trial.

Park’s complaint alleged facts that are “suggestive” of an

agreement to engage in “illegal conduct.” See Twombly, 550

U.S. at 564 n.8. When the entire factual context is

considered,22 it is clear that Park has “nudged [her] claim[]”

that Thompson conspired to orchestrate Ayala’s

unavailability “across the line from conceivable to plausible.”

See Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (internal

quotation marks omitted). “The Twombly plausibility

standard . . . does not prevent a plaintiff from pleading facts

alleged upon information and belief where the facts are

peculiarly within the possession and control of the defendant

or where the belief is based on factual information that makes

the inference of culpability plausible.” Arista Records, LLC

v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citations and

quotation marks omitted); see also Concha v. London, 62

F.3d 1493, 1503 (9th Cir. 1995) (“[W]e relax pleading

requirements where the relevant facts are known only to the

defendant.”). Because many of the relevant facts here are

known only to the defendant, and in light of the additional

facts alleged by Park, we conclude that she has pleaded

22

The dissent attempts to characterize this rather unusual course of

events as merely “some parallel conduct.” Dissenting Op. at 37. As

explained above, however, when the entire sequence of events in the

complaint is considered in context, what might otherwise appear to have

been coincidental parallel conduct on its own becomes “suggestive of

illegal conduct” and is thus sufficient to survive a motion to dismiss.

Twombly, 550 U.S. at 564 n.8.

PARK V. THOMPSON 33

sufficient facts to state a plausible claim for civil conspiracy

under Section 1983.23

CONCLUSION

For the reasons stated above, the district court’s dismissal

of Park’s complaint is reversed and remanded for proceedings

consistent with this opinion. REVERSED AND

REMANDED.

FERNANDEZ, Circuit Judge, concurring in part and

dissenting in part:

I respectfully concur in part and dissent in part.

I agree with the majority that we must review the district

court’s decision de novo. See Starr v. Baca, 652 F.3d 1202,

1205 (9th Cir. 2011). Moreover, I agree that we view the

allegations of the complaint in the light most favorable to the

plaintiff. But that does not mean that a complaint is sufficient

because we can imagine a possibility that the defendant has

committed some wrongdoing. Rather, “[w]here a complaint

pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Moss v. U.S. Secret

Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation

23

Thompson contends that she is entitled to qualified immunity. The

district court declined to address Thompson’s qualified immunity

argument because it dismissed both of Park’s causes of action for other

reasons. We do not consider the question here in the absence of its initial

consideration by the district judge.

34 PARK V. THOMPSON

marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662,

677–84, 686–87, 129 S. Ct. 1937, 1949–52, 1954, 173 L. Ed.

2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,

127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007).

Moreover, where a plaintiff has relied upon a document,

or parts thereof, courts can properly consider the whole of the

document to be effectively incorporated by reference into the

complaint. See Branch v. Tunnell, 14 F.3d 449, 453–54 (9th

Cir. 1994), overruled on other grounds by Galbraith v.

County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002);

see also Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.

2007) (per curiam); Knievel v. ESPN, 393 F.3d 1068,

1076–77 (9th Cir. 2005).

As the district court determined, Park’s complaint does

not cross the line and reach plausibility; it is blocked by the

principles outlined above.

A. I agree that if a government officer “‘intimidates or

harasses the witness to discourage the witness from

testifying,’” that indicates “‘[u]ndue prosecutorial

interference.’” United States v. Bohn, 622 F.3d 1129, 1138

(9th Cir. 2010); see also Earp v. Ornoski, 431 F.3d 1158,

1170–71 (9th Cir. 2005); Williams v. Woodford, 384 F.3d

567, 601–02 (9th Cir. 2004). Unnecessarily strong warnings

can accomplish that. See, e.g., Webb v. Texas, 409 U.S. 95,

98, 93 S. Ct. 351, 353–54, 34 L. Ed. 2d 330 (1972) (per

curiam); United States v. Vavages, 151 F.3d 1185, 1190–91

(9th Cir. 1998); cf. United States v. Jaeger, 538 F.3d 1227,

1231–32 (9th Cir. 2008). Had Thompson engaged in that sort

of activity, she would have acted improperly. See Ayala v.

Chappell, 829 F.3d 1081, 1110–11 (9th Cir. 2016). She did

not do so.

PARK V. THOMPSON 35

In fact, Thompson did not threaten Ayala at all, and surely

did not suggest that Ayala should not testify. Of course, she

did state that Gilmore was “really upset.” However, that was

not because of what Ayala had said or would say, but because

the defense minions had bad-mouthed him and claimed that

he had committed other unsavory crimes. Gilmore was

concerned that their statements would cause Ayala to “lose

faith in him.” One could speculate that the “really upset”

language was, or was taken as, some sort of threat, but that

would be speculation about a mere possibility and a rather

strange reading of the whole conversation at that. By the

way, even if one were persuaded by the reasoning of Smith v.

Baldwin, 466 F.3d 805, 824 (9th Cir. 2006), vacated, 510

F.3d 1127, 1148–49 (9th Cir. 2007) (en banc), it is not at all

“obvious” that there was intimidation or coercion by

Thompson in this case.

Furthermore, Thompson told Ayala that if she received a

subpoena she was “under an obligation to appear.”

Moreover, when Ayala said that she did not want to hurt

Gilmore, Thompson replied: “No, I understand. But—but

you have to tell the truth and you’ll have to let us do our job

. . . .” None of that bespeaks an attempt to keep Ayala from

testifying; quite the contrary.

I recognize that Thompson entered dangerous territory

when she decided to talk to Ayala and tell her that she was

not required to speak further to Park’s investigators. See

Cacoperdo v. Demosthenes, 37 F.3d 504, 508–09 (9th Cir.

1994); United States v. Rich, 580 F.2d 929, 934 (9th Cir.

1978). But dangerous is not the same as forbidden.1

1

For example, our freeways are undoubtedly dangerous to all

drivers; they are not forbidden to them.

36 PARK V. THOMPSON

Therefore, Thompson’s decision to speak with Ayala may not

have been wise, but it was not disastrous.2

Incidentally, the complaint’s mere general pleading that

there is some sort of nexus between the conversation in

question and Ayala’s decision not to testify is conclusory and

insufficient. See Blantz v. Cal. Dep’t of Corr. & Rehab., 727

F.3d 917, 926–27 (9th Cir. 2013); see also Iqbal, 556 U.S. at

686–87, 129 S. Ct. at 1954. That is especially true in the

context of this case where, in fact, Ayala did appear at trial in

response to a subpoena, and refused to testify on wholly

different grounds—she, herself, was facing criminal charges

and invoked her Fifth Amendment rights on that account.

The district court was not required to accept the fantasy,

which was based on nothing more than the complaint’s

information and belief assertion, that Ayala would have

blithely incriminated herself were it not for the conversation

she had with Thompson. See Burrage v. United States, __

U.S. __, __, 134 S. Ct. 881, 887–89, 187 L. Ed. 2d 715 (2014)

(but for causation); Blantz, 727 F.3d at 926–27 (conclusory

information and belief allegations); Vavages, 151 F.3d at

1191 (but for causation).

2

It should be noted that even viewed through the majority’s

somewhat distorted lens, the alleged claim of substantial interference with

Park’s due process rights at trial is very weak. For example, just what

evidence was Park denied? Possibly, Ayala would have testified that

when she baited Gilmore by accusing him of killing the murder victim,

who everyone knew had been strangled, he choked her and said: “You

want to see how she felt?” Although there is no justification for his

reaction to her statement, it is important to recognize that he did not

spontaneously choose that topic. He was reacting to Ayala’s taunt.

Moreover, in their unusual relationship, Ayala had, it seems, also

assaulted Gilmore—hence her own prosecution.

PARK V. THOMPSON 37

Thus, I dissent from part I.1 of the Discussion portion of

the majority opinion.

B. Because I do not think that there was a proper

allegation of a substantive violation, I also do not believe that

a conspiracy was effectively alleged. See Lacey v. Maricopa

County., 693 F.3d 896, 935 (9th Cir. 2012) (en banc).

Furthermore, there is not even a shard of a fact to show that

Thompson participated in any agreement to violate Park’s

constitutional rights. Even if she had committed a violation

when she spoke with Ayala, there is nothing to support the

claim that she conspired with others to have Ayala prosecuted

on criminal charges.3

In addition, while the majority basically contents itself

with the reflection that in general a pleading of conspiracy on

information and belief is enough if defendants have the

information,4 I do not believe that that kind of conclusory

pleading can suffice here. See Blantz, 727 F.3d at 926–27;

see also Twombly, 550 U.S. at 555–58, 127 S. Ct. at 1964–66.

Were it otherwise, a party could evade the plausible-pleading

standard by merely asserting information and belief and

pointing to some parallel conduct. As it is, Thompson’s

phone call was a far cry from the filing of a criminal felony

complaint by another agency and prosecutor, even though

they both involved Ayala.

3

Those charges were hardly trumped up or false, and Ayala

ultimately pled nolo contendere to a lesser offense. See Williams, 384

F.3d at 601–02.

4

An interesting circular concept: I do not have evidence of an

agreement, but since I say that you agreed, you must have the evidence.

38 PARK V. THOMPSON

Thus, I dissent from part II of the Discussion portion of

the majority opinion.

C. As I read the majority opinion (Discussion portion

part I.2), it seems to declare that an acquittal may or may not

ultimately preclude a constitutional claim; that will depend on

the facts and circumstances of the particular case.5 If I read

it aright, I do not disagree in principle with that general

proposition. However, as I have already indicated, in this

case the complaint does not spell out a constitutional claim in

the first place. Thus, I need not and do not opine on what the

result should be if Park had adequately pled that her rights

had been violated by Thompson’s conversation with Ayala.

D. I agree with the majority that the issue of qualified

immunity should be remanded to the district court for its

consideration in the first instance. See, e.g., Harlow v.

Fitzgerald, 457 U.S. 800, 819–20, 102 S. Ct. 2727, 2739, 73

L. Ed. 2d 396 (1982); Price v. Hawaii, 939 F.2d 702, 707 (9th

Cir. 1991).

Thus, I respectfully concur in part and dissent in part.

5

See Haupt v. Dillard, 17 F.3d 285, 287–88 (9th Cir. 1994); see also

Smith v. Almada, 640 F.3d 931 (9th Cir. 2011) (majority opinion, two

concurring opinions, and one dissenting opinion); Mosley v. City of

Chicago, 614 F.3d 391, 397–98 (7th Cir. 2010); Kjellsen v. Mills, 517

F.3d 1232, 1238–40 (11th Cir. 2008); Morgan v. Gertz, 166 F.3d 1307,

1310 (10th Cir. 1999); McCune v. City of Grand Rapids, 842 F.2d 903,

907 (6th Cir. 1988).