William Richards v. County of San Bernardino

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM J. RICHARDS, No. 19-56205

Plaintiff-Appellant,

D.C. No.

v. 5:17-cv-00497-

SJO-SP

COUNTY OF SAN BERNARDINO;

MARK NOURSE; NORMAN PARENT;

TOM BRADFORD; JOHN NAVARRO; OPINION

DANIEL GREGONIS; NORMAN

SPERBER; DOES, 1 through 20,

inclusive,

Defendants-Appellees,

and

SAN BERNARDINO COUNTY DISTRICT

ATTORNEY OFFICE; SAN

BERNARDINO COUNTY SHERIFFS

OFFICE; RAMOS MICHAEL; MICHAEL

RISLEY; CRAIG OGINO,

Defendants.

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted February 7, 2022

Pasadena, California

2 RICHARDS V. COUNTY OF SAN BERNADINO

Filed June 24, 2022

Before: Kermit V. Lipez, * Richard C. Tallman, and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Tallman

SUMMARY **

Civil Rights

The panel reversed the district court’s summary

judgment for the County of San Bernardino and County

investigator Daniel Gregonis in an action brought pursuant

to 42 U.S.C. § 1983 alleging defendants violated plaintiff’s

constitutional rights during his murder investigation and

prosecution, resulting in his erroneous conviction for the

murder of his wife, Pamela Richards.

Plaintiff alleged that Gregonis fabricated evidence

against him by planting, on Pamela’s body, blue fibers from

a shirt that plaintiff was wearing on the night of the murder.

Plaintiff further alleged claims for municipal liability

pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978), against the County, arguing that the County’s

customs and policies, and the absence of better customs and

policies, resulted in the alleged constitutional violations.

*

The Honorable Kermit V. Lipez, United States Circuit Judge for

the First Circuit, sitting by designation.

**

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

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

RICHARDS V. COUNTY OF SAN BERNADINO 3

As a preliminary matter, the panel determined that the

district court incorrectly held that plaintiff was required to

show that Gregonis had a motive to manipulate the evidence.

Plaintiff did not need to rely on motive evidence because he

supported his claim with direct evidence of fabrication.

Viewing the facts in the light most favorable to the non-

moving party, plaintiff raised a triable issue as to whether

Gregonis deliberately planted the blue fibers under Pamela’s

fingernail. A jury could reasonably draw the inference that

the blue fibers were not under Pamela’s fingernail at the time

of the autopsy and were planted on Pamela’s body later after

the autopsy was performed. Because Gregonis was the only

person who accessed plaintiff’s shirt and Pamela’s severed

fingers before the fibers were discovered, a reasonable jury

could conclude that Gregonis was the person who planted

the blue fibers. The panel further held that the very same

rationale motivating the materiality causation standard for

claims brought under Brady v. Maryland, 373 U.S. 83

(1963), is also present in § 1983 claims for deliberate

fabrication of evidence, which implicate a plaintiff’s

fundamental right to a fair trial.

The panel held that because the district court erred by

failing to find potential civil rights liability as to Gregonis,

its derivative ruling as to potential County liability under

Monell should also be reversed. The panel further held that

the district court erred by not addressing whether plaintiff

could show that he suffered a constitutional injury by the

County unrelated to the individual officers’ liability under

§ 1983. Plaintiff put forth at least two Monell claims that

were not premised on a theory of liability that first required

a finding of liability on the part of the individual officers:

(1) that the County’s policy of prohibiting coroner

investigators from entering a crime scene until cleared by

4 RICHARDS V. COUNTY OF SAN BERNADINO

homicide detectives resulted in the loss of exculpatory time-

of-death evidence, and (2) that the lack of any training or

policy on Brady by the Sheriff’s Department resulted in

critical exculpatory evidence being withheld by the

prosecution. The panel therefore remanded to the district

court to consider these claims against Gregonis and the

County in the first instance.

In a concurrently filed memorandum disposition, the

panel affirmed the district court’s dismissal of plaintiff’s

remaining claims.

COUNSEL

Caitlin S. Weisberg (argued), Marilyn E. Bednarski, David

S. McLane, and Ben Shaw, McLane, Bednarski & Litt LLP,

Pasadena, California, for Plaintiff-Appellant.

Susan E. Coleman (argued), Burke, Williams & Sorensen,

LLP, Los Angeles, California, for Defendants-Appellees.

RICHARDS V. COUNTY OF SAN BERNADINO 5

OPINION

TALLMAN, Circuit Judge:

In 1997, after four trials and two hung juries, Plaintiff-

Appellant William Richards was convicted of the first-

degree murder of his wife, Pamela. In 2016, the California

Supreme Court vacated Richards’s conviction, finding that

it was based on “false evidence” as characterized in

subsequently enacted legislation defining the term, Cal.

Penal Code § 1473(e)(1), and Richards has since been

exonerated of Pamela’s murder, see Memorandum Decision,

People v. Richards, No. FVI00826 (San Bernardino Super.

Ct. June 18, 2021).

Richards now brings this 42 U.S.C. § 1983 action against

Defendants-Appellees—various sheriff’s officers and the

County of San Bernardino—alleging that Defendants

violated his constitutional rights during the 1993 murder

investigation and prosecution, resulting in his erroneous

conviction. The district court granted summary judgment

for Defendants, finding that Richards did not “carry his

burden to show that the investigating officers committed any

[federal] constitutional errors in their investigation of

Pamela’s murder.” We have jurisdiction pursuant to

28 U.S.C. § 1291, and we reverse the district court’s

judgment regarding the claims discussed herein and remand

for further proceedings solely as to them. 1

1

This opinion addresses only Richards’s claim against Daniel

Gregonis for deliberate fabrication of blue fiber evidence, and his

municipal liability claims against the County, which we reverse. We

affirm the district court’s rulings on the remaining claims in a

memorandum disposition filed concurrently with this opinion.

6 RICHARDS V. COUNTY OF SAN BERNADINO

I

At 11:58 p.m. on the night of August 10, 1993, the San

Bernardino Sheriff’s Department (SBSD) received a call that

a dead body had been discovered at a remote residential

location in the Mojave Desert in San Bernardino County,

California. 2 The victim, Pamela Richards, had been brutally

beaten and suffered two fatal injuries—strangulation and

blunt force trauma to the head. 3

An SBSD deputy was first to arrive at the rural property

at approximately 12:38 a.m., where he was met by Pamela’s

husband, William Richards. Richards told the deputy he had

discovered Pamela’s body lying face-down on the ground

outside their home shortly after he returned from work.

According to Richards, Pamela was “stone cold” and likely

had been dead for hours.

The deputy conducted a visual and physical inspection

of Pamela’s body. Pamela’s head had been crushed and

there was a large pool of blood beside her. There were

numerous bloodstains and spatter on Pamela’s body and the

surrounding area, and a bloody cinder block and

steppingstone were lying nearby. The deputy felt for a pulse

at Pamela’s neck and wrist and, after determining that

2

We summarize the facts on this summary judgment motion in the

light most favorable to Richards, who resisted summary judgment below.

See E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 770

(2015).

3

At Pamela’s autopsy, the medical examiner determined that

Pamela had been strangled, and that after Pamela was dead or nearly

dead from the strangulation, blunt force trauma was inflicted on her

skull.

RICHARDS V. COUNTY OF SAN BERNADINO 7

Pamela was deceased, called for homicide investigators to

respond.

In the early morning hours of August 11, several

homicide investigators arrived at the scene. Richards argues

that the investigators fabricated evidence against him and

otherwise performed a recklessly biased and unreliable

investigation. 4 One such investigator was Criminalist

Daniel Gregonis, who was employed in the SBSD Crime

Lab. As a criminalist, Gregonis worked with homicide

investigators to process the crime scene, to collect physical

evidence, and to package and preserve that evidence so that

it could be transported to the crime lab for further analysis.

Gregonis was also responsible for later examining the

forensic evidence at the lab.

Richards alleges that while forensic evidence was being

examined at the crime lab, Gregonis deliberately fabricated

inculpatory evidence against him. Specifically, Richards

claims that Gregonis planted blue fibers from a cotton work

shirt that Richards was wearing on the night of the murder,

fibers which Gregonis says he found under one of Pamela’s

fingernails.

4

There are numerous disputes of fact amongst the parties

concerning the adequacy of the murder investigation. In this action,

Richards brought § 1983 claims arguing that a reckless investigation was

performed because investigators: failed to erect a barrier or to preserve

the scene; failed to keep a log of who came in and out of the scene; failed

to call a coroner in time to collect time-of-death information; failed to

take fingerprints at several locations, including the cement block that

appeared to be the murder weapon; failed to properly record tire marks

and shoe prints; failed to scrape Richards’s nails for trace evidence;

failed to seriously investigate other potential perpetrators; and more.

These allegations are addressed in the concurrently filed memorandum

disposition and will not be further discussed in this opinion.

8 RICHARDS V. COUNTY OF SAN BERNADINO

At the autopsy, the medical examiner had scraped

Pamela’s fingernails in search of “any type of trace evidence,

anything that might be adhered to the nails,” and then the

examiner severed two of Pamela’s fingers for further

processing. On September 13, 1993, Gregonis checked out

of evidence Pamela’s two severed fingers for further

examination. On September 14, Gregonis checked out

Richards’s clothing, including the blue cotton work shirt that

Richards was wearing on the night of Pamela’s murder. At

that point in time, aside from Gregonis, no one else had

examined either Richards’s clothing or the severed fingers

since the time they were first logged into evidence at SBSD’s

secure property section.

Gregonis claimed that, on September 13, he found a tuft

of blue cotton fibers wedged in a crack of a broken fingernail

on one of the severed fingers. Gregonis videorecorded his

removal of the blue fibers on September 14—the same date

that he had custody of both the severed fingers and

Richards’s clothing. The tuft of fibers was 1/2 centimeter

long and contained 15 individual fibers, grouped together.

Gregonis subsequently compared the blue fibers to a sample

from Richards’s shirt and concluded that “[t]he fibers

recovered from the broken fingernail . . . from [Pamela] are

consistent with originating from the light blue shirt . . . from

[Richards].” 5

The blue fibers were visible to the naked eye, yet they

had not been observed by any other investigator prior to

Gregonis’s discovery. The blue fibers were not located

during the autopsy, nor were they detected by the medical

examiner during the finger-scraping, fingerprinting, or

5

Gregonis later discarded the sample of Richards’s shirt that he used

for comparison, in violation of SBSD protocol.

RICHARDS V. COUNTY OF SAN BERNADINO 9

finger-severing process in which the examiner was in close

contact with Pamela’s hands. Moreover, the fibers are

clearly visible in photographs taken from Gregonis’s

removal video, but are noticeably absent from photographs

taken of Pamela’s hands during the prior autopsy.

On September 3, 1993, Richards was ultimately arrested

and booked for his wife’s murder. The evidence against him

was circumstantial, and three attempts to prosecute Richards

failed to result in a conviction. The first two trials ended in

a hung jury, and the third trial ended in a mistrial during jury

selection.

Before the prosecution’s fourth and successful attempt to

convict Richards, the County retained a forensic

odontologist to present bitemark evidence on behalf of the

prosecution. This bitemark evidence was based on a

crescent-shaped bruise found on Pamela’s right hand.

During the autopsy, the medical examiner determined that

the bruise was “most certainly” not a bitemark because

“[b]asically it ha[d] none of the features of a bitemark.”

Therefore, standard bitemark procedure was not followed,

and only a single, distorted photograph of the bruise was

taken. Nevertheless, the County’s expert forensic

odontologist used the distorted photograph along with dental

impressions of Richards’s teeth to conclude that the bruise

might be a bitemark, and that “[Richards’s] remaining lower

teeth are consistent with the bitemark.” After the trial that

included the bitemark evidence, Richards was finally

convicted in 1997 for his wife’s murder.

In 2007, Richards brought a habeas corpus petition in

San Bernardino County Superior Court claiming that his

1997 murder conviction was based on false bitemark

evidence, and that new evidence unerringly established his

10 RICHARDS V. COUNTY OF SAN BERNADINO

innocence. 6 In support of the false evidence claim, Richards

submitted with his petition a declaration by the County’s

expert forensic odontologist recanting his earlier opinion

based, in part, on subsequently performed computer

enhancement of the bitemark photograph. Based on this

recantation and new evidence, the trial court granted

Richards’s habeas petition. The California Supreme Court,

however, overturned this decision, finding that Richards

“failed to establish that any of the evidence offered at his

1997 trial was false” and the “newly discovered evidence

does not point unerringly to innocence or reduced

culpability.” In re Richards, 289 P.3d 860, 876 (Cal. 2012)

(simplified).

The California Legislature subsequently enacted a new

law that amended the California habeas statute to define

“false evidence” as including the “opinions of experts that

have either been repudiated by the expert who originally

provided the opinion at a hearing or trial or that have been

undermined by later scientific research or technological

advances.” Cal. Penal Code § 1473(e)(1). Richards then

brought a second habeas proceeding on the basis of this

legislative amendment to false evidence jurisprudence.

Ultimately, the California Supreme Court granted

Richards’s second habeas petition and vacated his

conviction. In re Richards, 371 P.3d 195, 211 (Cal. 2016).

After nearly twenty years in custody, Richards was released

from prison.

6

The new evidence Richards offered included evidence that a third-

party’s DNA was discovered on the cinder block that could have been

used to kill Pamela, that a hair from a third-party was recovered from

Pamela’s body, and that the tuft of blue fibers did not become lodged in

Pamela’s fingernail during her struggle with her killer.

RICHARDS V. COUNTY OF SAN BERNADINO 11

After his conviction was vacated, Richards commenced

the instant lawsuit in the Central District of California.

Richards brought claims under 42 U.S.C. § 1983 against

various sheriff’s officers and the County of San Bernardino

for constitutional violations allegedly committed during the

murder investigation and prosecution. Relevant to this

opinion, Richards brought a claim against Gregonis for

deliberate fabrication of the blue fiber evidence, and claims

for municipal liability pursuant to Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978), against the County, arguing that

the County’s customs and policies, and the absence of better

customs and policies, resulted in the alleged constitutional

violations that he suffered.

The district court ultimately granted summary judgment

for all Defendants. The court found that even if it made all

inferences in favor of Richards’s version of the facts,

Richards did “not carry his burden to show that the

investigating officers committed any constitutional errors in

their investigation of Pamela’s murder.” Accordingly, the

district court also found that Richards’s “allegations against

the County fail because proving liability under Monell

requires a predicate constitutional violation by a government

official.”

This appeal timely followed.

II

“This court reviews a grant of summary judgment de

novo.” Garris v. Fed. Bureau of Investigation, 937 F.3d

1284, 1291 (9th Cir. 2019). “Viewing the evidence in the

light most favorable to the nonmoving party, we must

determine whether there are any genuine issues of material

fact and whether the district court correctly applied the

relevant substantive law.” Grand Canyon Tr. v. Provencio,

12 RICHARDS V. COUNTY OF SAN BERNADINO

26 F.4th 815, 820 (9th Cir. 2022) (simplified). We “may

affirm the district court on any ground supported in the

record.” Miranda v. City of Casa Grande, 15 F.4th 1219,

1224 (9th Cir. 2021).

III

Richards alleges that Gregonis deliberately fabricated

evidence by planting blue fibers on Pamela’s body. The

district court held that Richards could not establish a claim

for deliberate fabrication because: (1) Richards was “unable

to point to facts that show that Mr. Gregonis had a motive to

deliberately manipulate the evidence”; (2) there were “far

more plausible explanations for the late discovery of the blue

fibers”; and (3) Richards had “not carried his burden of

showing that any purported planting of the blue fibers

resulted in his conviction.” We reverse and remand this

claim because there are contested issues of material fact, and

the district court did not correctly apply the relevant

substantive law.

“[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 v. Abbey, 263 F.3d 1070, 1074–75

(9th Cir. 2001) (en banc). A plaintiff can prove deliberate

fabrication in two ways. “Most basically, a plaintiff can

produce direct evidence of deliberate fabrication.” Caldwell

v. City & Cnty. of S.F., 889 F.3d 1105, 1112 (9th Cir. 2018).

“Alternatively, a plaintiff can produce circumstantial

evidence related to a defendant’s motive.” Id. To prove

fabrication using circumstantial motive evidence, a plaintiff

must establish that either: (a) “[d]efendants continued their

investigation of [plaintiff] despite the fact that they knew or

should have known that he was innocent”; or

(b) “[d]efendants used investigative techniques that were so

RICHARDS V. COUNTY OF SAN BERNADINO 13

coercive and abusive that they knew or should have known

that those techniques would yield false information.”

Devereaux, 263 F.3d at 1076.

A

As a preliminary matter, the district court incorrectly

held that Richards was required to show that Gregonis had a

motive to manipulate the evidence. This conclusion

misapprehends Ninth Circuit precedent. While motive is

recognized as potentially strong circumstantial evidence in

support of a claim of fabrication, see Caldwell, 889 F.3d at

1112, motive evidence is never required, see id. at 1113

(“[R]etaliatory motive is not an element of a fabrication of

evidence claim . . . .”). Stated differently, motive is merely

one type of circumstantial evidence that may be used to

support a claim of deliberate fabrication. Id. at 1112; see

also Spencer v. Peters, 857 F.3d 789, 798–800 (9th Cir.

2017). And here, Richards need not rely on motive evidence

because he supports his claim with direct evidence of

fabrication. The district court therefore erred in concluding

Richards was required to show that “Gregonis had a motive

to deliberately manipulate the evidence.”

B

The district court also granted summary judgment

because it believed that “far more plausible explanations for

the late discovery of the blue fibers” existed. But it was not

the court’s role on summary judgment to weigh the evidence.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986) (“[A]t the summary judgment stage the judge’s

function is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is a

genuine issue for trial.”). Instead, viewing the facts in the

light most favorable to the non-moving party, Richards has

14 RICHARDS V. COUNTY OF SAN BERNADINO

raised a triable issue as to whether Gregonis deliberately

planted the blue fibers under Pamela’s fingernail.

First, Richards provides sufficient facts to plausibly

establish that Gregonis was in exclusive control of the

relevant evidence at the time of the alleged fabrication. Both

Pamela’s severed fingers and Richards’s blue cotton work

shirt had been checked into evidence at the SBSD’s secure

property storage unit. The fingers were logged into the

evidence unit after the autopsy, and Richards’s shirt was

logged in the morning after the murder. Aside from

Gregonis, no one else checked out either Richards’s clothing

or the severed fingers between the time that they were

initially logged and the time that Gregonis removed them for

further analysis and allegedly discovered the tuft of blue

fibers. On September 14, 1993, Gregonis videorecorded his

removal of the blue fibers—the same date on which

Gregonis had exclusive custody of both the severed fingers

and Richards’s clothing.

Second, Richards raises a triable issue as to whether the

blue fibers were planted. The tuft of fibers was made up of

15 individual fibers, all about 1/2 of a centimeter long—the

approximate length of a 14-point-font em dash (—).

Richards’s expert stated that fibers of this size and length

would be visible to the naked eye, and even Gregonis

himself admits this to be true. Yet no one who was in close

contact with Pamela’s hands at the autopsy—including the

medical examiner who scraped Pamela’s fingernails for

trace evidence—ever saw the blue fibers.

Further, the record contains several photographs of

Pamela’s fingers before and during the autopsy. In the

autopsy photographs, no blue fibers are visible under

Pamela’s fingernails. Yet, in photographs from Gregonis’s

removal video, the blue fibers are clearly visible. A jury

RICHARDS V. COUNTY OF SAN BERNADINO 15

reviewing the autopsy photographs could conclude that they

would have depicted any blue fibers under Pamela’s

fingernails if they had been present. This conclusion would

support a jury’s finding that the blue fibers were not present

under Pamela’s fingernails at the time of the autopsy.

Autopsy photographs Removal video photographs

Expert analysis provides further support for the false

evidence claim. See Thomas v. Newton Int’l Enters., 42 F.3d

1266, 1270 (9th Cir. 1994) (“Expert opinion evidence is

itself sufficient to create a genuine issue of disputed fact

sufficient to defeat a summary judgment motion.”).

Richards’s expert analytic forensic photographer concluded

“with a high degree of certainty” that in the autopsy

photographs “there is no visible tuft of blue fibers on the top

of the . . . fingernail in the location demonstrated in the fiber

removal video.” The expert stated that the resolution of the

camera and lens used in the autopsy photographs “were

reasonably good enough to . . . depict a tuft of blue fibers if

the fibers were present,” and that certain variable factors—

such as the difference in angle between the autopsy and

removal video photographs, the resolution of the images, the

color temperature of the light, and the direction of the light—

would not “negatively impact the autopsy images to a degree

that would obscure the mass of blue fibers if it was present

16 RICHARDS V. COUNTY OF SAN BERNADINO

at the time the photograph was taken.” Moreover, a different

expert using “Photoshop and color saturation techniques”

also concluded that “no strands of blue clothing fiber are

present under a fingernail of the decedent” in the autopsy

photographs. In fact, the second expert went so far as to say

that “[t]he forensic evidence brought forth . . . in relation to

the fiber evidence” is “consistent with forensic deception.”

From the foregoing evidence, a jury could reasonably

draw the inference that the blue fibers were not under

Pamela’s fingernail at the time of the autopsy. A jury could

further infer that, because the fibers were not present during

the autopsy, they were later planted on Pamela’s body after

the autopsy was performed. Finally, because Gregonis was

the only person who accessed Richards’s shirt and Pamela’s

severed fingers before the fibers were discovered, a

reasonable jury could conclude that Gregonis was the person

who planted the blue fibers. See Pelenty v. City of Seal

Beach, 588 F. App’x 623, 624–25 (9th Cir. 2014)

(unpublished) (reversing summary judgment when

defendant officers had access to the source of the allegedly

planted evidence, which spontaneously appeared in crime

scene photographs).

Even if, in the district court’s view, “more plausible

explanations” exist for the delayed discovery of the blue

fibers, at the summary judgment stage the trial court must

accept Richards’s evidence as true without making

credibility determinations or weighing the conflicting

evidence. Anderson, 477 U.S. at 249. Applying this

standard, we conclude that Richards has shown a triable

issue as to whether Gregonis deliberately fabricated the blue

fiber evidence. A jury will have to resolve it.

RICHARDS V. COUNTY OF SAN BERNADINO 17

C

As a final matter, the district court also granted summary

judgment for Gregonis because it concluded that “the bite

mark evidence, not the blue fiber evidence, was necessary to

convict Plaintiff.” We disagree.

The district court’s holding here was based on its

conclusion that Richards could not show that the blue fiber

evidence was a factual cause of his conviction. The

traditional means of proving factual causation is the “but

for” causation test. “Under this standard, a plaintiff must

demonstrate that, but for the defendant’s unlawful conduct,

[his or her] alleged injury would not have occurred.”

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140

S. Ct. 1009, 1014 (2020).

It is true that a showing of but-for causation regarding

the blue fiber evidence cannot easily be made here. As the

district court recognized, in the first two trials the

prosecution presented significant circumstantial evidence,

including the blue fibers discovered under Pamela’s

fingernail. Despite the blue fiber evidence, however, the

first two trials resulted in a hung jury. It was not until the

third trial, where the prosecution presented false bitemark

evidence, that Richards was convicted of his wife’s murder.

Therefore, it could more readily be said that the false

bitemark evidence, and not the blue fiber evidence, was the

but-for cause of Richards’s conviction.

But factual causation is not per se lacking when a

showing of but-for causation cannot be made. As the

Supreme Court has recognized, “alternative and less

demanding causal standards are necessary in certain

circumstances to vindicate the law’s purposes.” Paroline v.

United States, 572 U.S. 434, 452 (2014); see also Burrage v.

18 RICHARDS V. COUNTY OF SAN BERNADINO

United States, 571 U.S. 204, 214 (2014) (acknowledging

“the undoubted reality that courts have not always required

strict but-for causality, even where criminal liability is at

issue”). 7 We find a less demanding causation standard is

necessitated here.

The constitutional right at issue in this case is the

fundamental due process right to a fair trial. See Estelle v.

Williams, 425 U.S. 501, 503 (1976) (“The right to a fair trial

is a fundamental liberty secured by the Fourteenth

Amendment.”). This is the very same constitutional right

that is implicated when the prosecution suppresses evidence

under Brady v. Maryland, 373 U.S. 83 (1963). See United

States v. Bagley, 473 U.S. 667, 678 (1985) (“[S]uppression

of evidence amounts to a constitutional violation . . . if it

deprives the defendant of a fair trial.”). We have previously

concluded that in the Brady context, a plaintiff’s due process

right to a fair trial is “not conditioned on his ability to

demonstrate that he would or even probably would prevail at

trial if the evidence were disclosed.” Osborne v. Dist. Atty’s

Off. for Third Jud. Dist., 521 F.3d 1118, 1132 (9th Cir.

2008), rev’d on other grounds by, 557 U.S. 52 (2009). This

is because under Brady and its progeny, it is the suppression

7

One such test is aggregate causation. Under this test, “[w]hen the

conduct of two or more actors is so related to an event that their

combined conduct, viewed as a whole, is a but-for cause of the event,

and application of the but-for rule to them individually would absolve all

of them, the conduct of each is a cause in fact of the event.” Paroline,

572 U.S. at 451 (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen,

Prosser and Keeton on Law of Torts § 41, 268 (5th ed. 1984)). “The

Restatement adopts a similar exception for multiple sufficient causal sets

. . . where a wrongdoer’s conduct, though alone insufficient to cause the

plaintiff’s harm, is, when combined with conduct by other persons, more

than sufficient to cause the harm.” Id. at 451–52 (simplified) (quoting 1

Restatement (Third) of Torts: Liability for Physical and Emotional Harm

§ 27, 380–81, cmt. f (2005)).

RICHARDS V. COUNTY OF SAN BERNADINO 19

of material evidence—and not the plaintiff’s ultimate

conviction—that deprives the plaintiff of their liberty

interest in a fair trial. See Poventud v. City of N.Y., 750 F.3d

121, 133 (2d Cir. 2014) (en banc) (“[P]roof of the

constitutional violation need not be at odds with [the

plaintiff’s] guilt.”). Accordingly, causation is satisfied for

Brady claims if the plaintiff can show that the suppressed

evidence was “material”—i.e., that “there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995)

(quoting Bagley, 473 U.S. at 682).

The very same rationale motivating the materiality

causation standard for Brady claims is also present in § 1983

claims for deliberate fabrication of evidence. The deliberate

fabrication of evidence implicates a plaintiff’s fundamental

right to a fair trial. See Devereaux, 263 F.3d at 1074–75;

Smalls v. Collins, 10 F.4th 117, 132 (2d Cir. 2021). And this

right is implicated whenever the state deliberately fabricates

evidence, regardless of the plaintiff’s innocence or guilt. It

would be anomalous to turn away a plaintiff who has been

injured by deliberately fabricated evidence simply because

that evidence alone was not sufficient to cause the

conviction—the right to a fair trial is impinged either way.

Accordingly, a plaintiff’s due process right to a fair trial

should not be conditioned on his ability to demonstrate that

he would or even probably would prevail at trial if the

evidence had not been deliberately fabricated. Cf. Osborne,

521 F.3d at 1132.

Presumably based on this rationale, most other federal

circuits have applied variations of the Brady materiality

causation standard to § 1983 claims for deliberate

20 RICHARDS V. COUNTY OF SAN BERNADINO

fabrication of evidence. 8 For example, the Seventh Circuit

has held a § 1983 plaintiff need only show that allegedly

fabricated “evidence was material—that is, . . . there is a

reasonable likelihood the evidence affected the judgment of

the jury.” Patrick v. City of Chi., 974 F.3d 824, 835 (7th Cir.

2020). And a similar standard applies in the Second Circuit,

which requires a § 1983 plaintiff to show that “the false

information was likely to influence a jury’s decision.”

Smalls, 10 F.4th at 132 (quoting Garnett v. Undercover

Officer C0039, 838 F.3d 265, 280 (2d Cir. 2016)).

Given the foregoing, we conclude that the less

demanding materiality causation standard is necessary under

these circumstances to vindicate Richards’s fundamental

right to a fair trial. See Paroline, 572 U.S. at 452. We

therefore hold that Richards can establish factual causation

if he can show a reasonable likelihood that the allegedly

8

See, e.g., Truman v. Orem City, 1 F.4th 1227, 1236 n.5 (10th Cir.

2021) (“To satisfy [the causation] element where . . . the plaintiff was

allegedly deprived of a fair trial, the fabricated evidence must be

material, meaning there is a reasonable likelihood that without the use of

the fabricated evidence, the defendant would not have been deprived of

a fair trial.”); Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014) (“[T]he

defendant has a stand-alone claim . . . if there is a reasonable likelihood

that, without the use of that [fabricated] evidence, the defendant would

not have been convicted.”); Gregory v. City of Louisville, 444 F.3d 725,

737 (6th Cir. 2006) (“It is well established that a person’s constitutional

rights are violated when evidence is knowingly fabricated and a

reasonable likelihood exists that the false evidence would have affected

the decision of the jury.”); cf. United States v. Agurs, 427 U.S. 97, 103

(1976) (stating that when a conviction is obtained by the knowing use of

false testimony it “must be set aside if there is any reasonable likelihood

that the false testimony could have affected the judgment of the jury”).

RICHARDS V. COUNTY OF SAN BERNADINO 21

fabricated blue fiber evidence could have affected the

judgment of the jury. 9

The district court did not apply this standard. Instead,

the court’s causation ruling made an improper leap from its

conclusion that the false bitemark testimony was a necessary

cause of Richards’s conviction to it being the sole cause.

Because Richards has shown a triable issue as to whether

Gregonis deliberately planted the blue fibers on Pamela’s

body, see supra, Part III.B, we reverse and remand to the

district court to reassess, in light of this opinion, whether a

triable issue also exists as to causation.

IV

The district court held that Richards’s Monell claims fail

because “proving liability under Monell requires a predicate

constitutional violation by a government official.” We

disagree.

First, because potential civil rights liability as to at least

one individual defendant (Criminalist Gregonis) was in

error, see supra, the district court’s derivative ruling as to the

County on potential Monell liability should also be reversed.

Second, this Court has rejected the view that municipal

liability is precluded as a matter of law under § 1983 when

the individual officers are exonerated of constitutional

wrongdoing. See Fairley v. Luman, 281 F.3d 913, 917 (9th

9

Defendants argue that a “materiality” standard would eliminate

causation, which is a necessary element of any § 1983 claim. That is not

true. Under the materiality standard, there must be a reasonable

probability that the defendant would not have been convicted without the

wrongful fabrication of evidence. The materiality standard therefore

integrates—and does not eliminate—causation.

22 RICHARDS V. COUNTY OF SAN BERNADINO

Cir. 2002). Instead, “[i]f a plaintiff established he suffered

constitutional injury by the County, the fact that individual

officers are exonerated is immaterial to liability under

§ 1983.” Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1250

n.12 (9th Cir. 2016) (simplified). “This is true whether the

officers are exonerated on the basis of qualified immunity,

because they were merely negligent, or for other failure of

proof.” Fairley, 281 F.3d at 917 n.4. Here, Richards puts

forth at least two Monell claims that are not premised on a

theory of liability that first requires a finding of liability on

the part of the individual officers: (1) that the County’s

policy of prohibiting coroner investigators from entering a

crime scene until cleared by homicide detectives resulted in

the loss of exculpatory time-of-death evidence, and (2) that

the lack of any training or policy on Brady by SBSD resulted

in critical exculpatory evidence being withheld by the

prosecution. Irrespective of the merits of these claims, the

district court erred by not addressing whether Richards could

show that he suffered a constitutional injury by the County

unrelated to the individual officers’ liability under § 1983.

We therefore remand to the court to consider these

claims against Gregonis and the County in the first instance.

V

Having concluded that the district court erroneously

granted summary judgment for Defendant Gregonis as to the

claims involving the blue fiber evidence and the County of

San Bernardino, we REVERSE these claims, and

REMAND for further proceedings consistent with this

opinion. We AFFIRM dismissal of the remaining claims

in the corresponding memorandum disposition.

Each party shall bear its own costs.