McSherry v. City of Long Beach

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LEONARD MCSHERRY, 
Plaintiff-Appellant,
v. No. 03-57064
CITY OF LONG BEACH; LONG BEACH
POLICE DEPARTMENT; NORMAN  D.C. No.
CV-02-03767-RGK
TURLEY, Officer; CARTHEL S.
OPINION
ROBERSON, in his individual and
official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Argued and Submitted
July 13, 2005—Pasadena, California

Filed September 8, 2005

Before: Jerome Farris, Dorothy W. Nelson, and
Richard C. Tallman, Circuit Judges.

Opinion by Judge D.W. Nelson

12641
12644 MCSHERRY v. CITY OF LONG BEACH

COUNSEL

Mark A. Borenstein, Overland & Borenstein, Los Angeles,
California, for the plaintiff-appellant.

Noland C. Hong (argued), Michael M. Mullins (on the briefs),
Brown, Winfield & Canzoneri, Los Angeles, California, for
the defendants-appellees.

OPINION

D.W. NELSON, Circuit Judge:

Leonard McSherry appeals the district court’s order grant-
ing defendant City of Long Beach’s (“City’s”) motion for
judgment as a matter of law under Federal Rule of Civil Pro-
cedure 50. The court granted defendant’s motion on the first
day scheduled for trial, prior to the presentation of any evi-
dence in the case. We conclude that the motion was inappro-
priately granted, and accordingly reverse and remand the
decision.

McSherry also appeals the denial of two evidentiary
motions in limine and requests reassignment of the case to a
different judge on remand. We cannot review the district
court’s evidentiary rulings because those rulings are not final
decisions reviewable under 28 U.S.C. § 1291. We deny the
request for reassignment.

I.

Plaintiff McSherry brings this civil action against the City
of Long Beach, alleging that the City and its employees, Offi-
 MCSHERRY v. CITY OF LONG BEACH 12645
cers Turley and Roberson, violated his constitutional rights
during an investigation that lead to his conviction for child
molestation. McSherry had served nearly fourteen years of a
48-year to life prison sentence before DNA evidence exoner-
ated him and the Superior Court of Los Angeles County
ordered his release.

The investigation at issue in this case concerned the kid-
napping, molestation, and rape of a six-year-old girl in March
1988. Her abduction from a playground in Long Beach, Cali-
fornia, was witnessed by her four-year-old brother. Long
Beach Police Department (LBPD) investigators first inter-
viewed the victim about ten hours after she was released by
the perpetrator. According to McSherry’s pretrial contentions
of fact, during her first interview with police, the victim
described the perpetrator as “a white male with black hair and
mustache [who] was short, fat and older than her grandfa-
ther.” She told the officers that he made her get into a “green
‘strange car.’ ” Her younger brother told police that his sister
got into a green car with a man who was “red in color” and
had black hair. Five days later, a neighbor reported to the
police that, on the day of the abduction, she had seen a suspi-
cious looking man in the area where the victim was abducted.
Her description in several ways matched the description given
by the victim. The neighbor also had seen an unfamiliar green
pick-up truck in the area.

McSherry contends that the victim told the police that the
perpetrator drove her to a place that had numbers on the door
and had only two rooms, a bedroom and a bathroom. She
described the building as a brown house with stairs, and said
that she had been upstairs in a bedroom with a television and
without pictures on the walls.

Several weeks after the incident, after the investigation had
not provided any leads, defendant Officer Turley interviewed
the victim in the presence of a social worker at a children’s
psychiatric facility. Turley showed the victim six photos in an
12646 MCSHERRY v. CITY OF LONG BEACH
attempt to determine if a suspect who matched the victim’s
initial description was the perpetrator. Although his appear-
ance did not conform to the victim’s description, McSherry’s
photo was among the choices.1 The victim allegedly identified
McSherry as the perpetrator two times. Several days later,
Turley showed the victim the same photos as in the earlier
array, and she again identified McSherry. Turley also showed
the victim photos of cars, and she reportedly identified
McSherry’s father’s yellow Mazda station wagon as the vehi-
cle she rode in. The victim also participated in a line up.
Although she failed to identify McSherry, she identified him
to police immediately after she left the room, stating that she
had been afraid to identify him during the line up.

McSherry was arrested on May 17 at his grandparents’
home. Defendants Turley and Roberson interrogated
McSherry, who provided a detailed description of the interior
of the house. The next day, Turley interviewed the victim to
obtain a description of the place to which she had been taken.
The victim reportedly identified a photo of McSherry’s grand-
parents’ house, though it did not match her earlier descrip-
tions. She allegedly provided a detailed description of the
interior, including the content of pictures on the wall, the
color of sheets and blankets on the bed, and the color and
location of furnishings in the room. Turley served a search
warrant on McSherry’s grandparents’ house the following
day. McSherry contends that in her next interview with
police, the victim added more details to her description of the
interior of the house, including the shape of a mirror, how
doors opened, the location of a photograph, and the sound of
a bird in the next room. The description conformed to the
interior of a bedroom in McSherry’s grandparents’ house.

McSherry was convicted on the basis of the victim’s and
her neighbor’s testimony and in-court identifications, and
1
McSherry resided in the area and had a prior conviction for child
molestation.
 MCSHERRY v. CITY OF LONG BEACH 12647
Turley’s testimony about the victim’s identification and
description of McSherry’s grandparents’ house. He was sen-
tenced to 48 years to life in prison.

In December 2001, McSherry had served nearly fourteen
years of his sentence when DNA analysis revealed that he had
not committed the crimes. The DNA matched that of George
Valdespino, who was serving a life sentence in California
state prison at the time of McSherry’s release. Valdespino had
been arrested in Costa Mesa one week after the abduction,
and was charged at that time with kidnapping and molesting
a four-year-old girl. In December 2001, Valdespino admitted
in a taped confession that in 1988 he had kidnapped a girl in
the Long Beach area in a green Ford Ranchero and taken her
to a motel room to molest her.

The victim testified at a deposition in 2002 that she was
impatient during her interviews with Turley and just wanted
to play. She recalled that Turley pointed to a number of pho-
tos during the interview. McSherry contends that the victim
stated that she had not identified the yellow Mazda as the car
she was kidnapped in, and that she did not give a description
of the place she was taken as Turley testified at the trial.

In May 2002, McSherry filed a complaint under 42 U.S.C.
§ 1983 alleging that the City of Long Beach, the LBPD, and
Officer Turley violated McSherry’s Fourth, Fifth, and Four-
teenth Amendment rights. Turley’s supervisor, Roberson, was
added as a defendant in April 2003. McSherry alleged that
Turley and Roberson violated his rights to due process of law
and freedom from unreasonable seizures and searches. He
contended that the City of Long Beach maintained policies or
practices that included failure to train or supervise officers on
investigation procedures, and reckless retention or assignment
of officers. The court ordered that the proceedings be trifur-
cated into separate trials on individual liability, municipal lia-
bility, and damages, and that the liability of Officers Turley
and Roberson be tried first.
12648 MCSHERRY v. CITY OF LONG BEACH
Just before trial was scheduled to begin, the defendants
filed a Motion for Judgment as a Matter of Law under Federal
Rule of Civil Procedure 50, arguing that the individual offi-
cers had qualified immunity and thus that there was no evi-
dence from which a jury could reach a finding of individual
liability. The court permitted McSherry to file a response,
“[i]f [he] thought it [was] appropriate.” McSherry’s response
indicated that he considered the motion an inappropriate
attempt to smoke out his trial strategy. He included no evi-
dence with his filing; the defense included only limited evi-
dentiary support with its motion. The court heard argument a
week later, on the first day scheduled for trial.

In its oral ruling, the court stated that “qualified immunity
is not necessarily a jury issue and should be determined . . .
at the earliest possible time.” The court determined that
Devereaux v. Abbey, 263 F.3d 1070, 1075-76 (9th Cir. 2001)
(en banc), precluded a constitutional claim based on the use
of improper interview techniques. Thus, according to the dis-
trict court, the primary issues in the case were whether the
defendants had acted in a way that they knew or should have
known would produce a false result, or whether the defen-
dants had presented fabricated evidence. The court concluded
that McSherry had not presented evidence showing that the
officers had fabricated evidence or acted in a way that would
produce a false result, and thus that he had not shown that the
defendants had violated his due process rights. The court
granted qualified immunity to Turley and Roberson, dis-
missed the individual liability claims against them, and dis-
missed the municipal liability claims as pendant to the
individual liability claims. McSherry urges that the dismissal
was improper under Rule 50.

II.

The pre-trial use of Rule 50 in this case presents a matter
of first impression in this circuit. Indeed, it is difficult to find
any case making a comparable use of the rule. We review the
 MCSHERRY v. CITY OF LONG BEACH 12649
grant of judgment as matter of law de novo to determine
whether the use of Rule 50 at the outset of trial, prior to the
presentation of any evidence, is appropriate. See City Solu-
tions, Inc. v. Clear Channel Comm. Inc., 365 F.3d 835, 839
(9th Cir. 2004). We conclude that this use of Rule 50 is not
supported by the language of the rule, the advisory commit-
tee’s notes, or caselaw governing the proper use of Rule 50.
Accordingly, we remand for further proceedings.

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

If during a trial by jury a party has been fully heard
on an issue and there is no legally sufficient eviden-
tiary basis for a reasonable jury to find for that party
on that issue, the court may determine the issue
against that party and may grant a motion for judg-
ment as a matter of law against that party with
respect to a claim or defense that cannot under the
controlling law be maintained or defeated without a
favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1). Thus, Rule 50(a) presumes that a
jury trial has begun, and that the nonmoving party “has been
fully heard” on the issue prior to the court’s ruling. However,
Rule 50(a)(2) provides: Motions for judgment as a matter of
law may be made at any time before submission of the case
to the jury. Such a motion shall specify the judgment sought
and the law and the facts on which the moving party is enti-
tled to the judgment. Fed. R. Civ. P. 50(a)(2). Defendants
urge that their motion is proper under Rule 50(a)(2), pointing
to the language authorizing motions “at any time before sub-
mission of the case to jury” as supporting the principle that a
Rule 50 motion may be made at, literally, “any time” once a
trial has commenced, regardless of the state of evidence
admitted.

[2] We decline to adopt this interpretation of Rule 50(a)(2).
Nothing about the language or structure of the provisions sug-
12650 MCSHERRY v. CITY OF LONG BEACH
gests that Rule 50(a)(2) has a force independent of Rule
50(a)(1). Reading the two provisions together, it is apparent
that Rule 50(a)(1) sets forth the standards under which a court
may grant judgment as a matter of law, while Rule 50(a)(2)
explains when a party may make a motion. The latter section
thus supplements the former by instructing the moving party
that it may file a motion until the case is submitted to the jury,
but does not eliminate the substantive requirement that a party
be “fully heard” on an issue prior to the grant of judgment as
a matter of law.

[3] Among the panoply of Federal Rules of Civil Procedure
are several mechanisms for a party to obtain a pre-trial dis-
missal of an action, none of which the defendants employed
here: a motion for dismissal for failure to state a claim pursu-
ant to Rule 12(b)(6), a motion for judgment on the pleadings
under Rule 12(c), and a motion for summary judgment under
Rule 56. Defendants effectively ask us to read Rule 50(a)(2)
as establishing an additional procedure to dismiss a case
before trial. Although the standard for granting a motion for
summary judgment is identical to that for granting a judgment
as a matter of law, Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986), Rule 50(a)(2) is not intended as an alterna-
tive mechanism for obtaining summary judgment, as the advi-
sory committee notes make clear. See Fed. R. Civ. P. 50,
Advisory Comm. Notes to 1991 Amends., Subdivision (a).

The advisory committee notes to the 1991 Amendments
explain that motions must be made “prior to the close of the
trial,” in order “to assure the responding party an opportunity
to cure any deficiency in that party’s proof that may have
been overlooked until called to the party’s attention . . . .” Id.
To that extent, the advisory committee noted that Rule
50(a)(2) “impose[s] a requirement that the moving party artic-
ulate the basis on which a judgment as a matter of law might
be rendered” so as to inform the non-moving party how it
might correct the deficiencies. Id. It is apparent, therefore,
that the language in Rule 50(a)(2) is not intended to permit
 MCSHERRY v. CITY OF LONG BEACH 12651
pre-trial motions but rather to prevent the moving party from
waiting until it is too late for the non-moving party to perfect
its case. See also Waters v. Young, 100 F.3d 1437, 1441 (9th
Cir. 1996) (noting that “a major purpose” of a motion under
Rule 50(a) is to give the non-moving party notice of the defi-
ciency).

[4] The advisory committee notes also make clear that a
court may not grant a motion for judgment as a matter of law
before a party has presented evidence in the case. The court
is authorized to grant judgment as a matter of law “at any time
during the trial, as soon as it is apparent that either party is
unable to carry a burden of proof” required, and it may rule
“as soon as a party has completed a presentation on a fact
essential to that party’s case.” Fed. R. Civ. P. 50, Advisory
Comm. Notes to 1991 Amends., Subdivision (a).

Such early action is appropriate when economy and
expedition will be served. In no event, however,
should the court enter judgment against a party who
has not been apprised of the materiality of the dispo-
sitive fact and been afforded an opportunity to pre-
sent any available evidence bearing on that fact.

Id. While “early action” is thus permissible under Rule 50, the
“early action” at issue here was too early: McSherry was not
afforded an opportunity to present evidence bearing on the
issue of qualified immunity, nor was he “apprised of the
materiality of the dispositive fact.” Id. Although McSherry
was permitted to file an opposition, he was not informed that
the court would treat the defense’s motion as one for sum-
mary judgment, nor that the failure to present evidence to the
court prior to trial would be fatal to his case.

[5] Although cases exist in which courts have granted judg-
ment as a matter of law at very early stages in the proceed-
ings, none suggests that such a motion should have been
granted under the circumstances presented here. See Moore v.
12652 MCSHERRY v. CITY OF LONG BEACH
J.H. Matthews & Co., 473 F.2d 328, 329-30 (9th Cir. 1973)
(construing a judgment as a matter of law granted after open-
ing statements as a judgment on the pleadings); United States
v. Vahlco, 720 F.2d 885, 889 (5th Cir. 1983) (cautioning that
it did not “much approve of the irregular procedure that the
trial court followed in granting a directed verdict before the
non-moving party had a chance to put in evidence.”). The
Fifth Circuit recently considered whether a plaintiff could be
considered to be “fully heard” under Rule 50 where the dis-
trict court granted a motion for judgment as a matter of law
before the plaintiff had finished presentation of evidence.
Echeverria v. Chevron USA Inc., 391 F.3d 607, 611-12 (5th
Cir. 2004). Adopting the views of the D.C. and Sixth Circuits,
the court concluded that “a party has not been fully heard
until he has submitted all of his evidence and closed his case.”
Id. at 611-12 (citing Teneyck v. Omni Shoreham Hotel, 365
F.3d 1139, 1149 (D.C. Cir. 2004); Jackson v. Quanex Corp.,
191 F.3d 647, 657 (6th Cir. 1999)). Under the rationale of
Echeverria, McSherry certainly had not been fully heard; he
had presented no evidence.2 We hold that the district court
may not grant a motion filed under Rule 50 prior to the pre-
sentation of any evidence in a case. The district court cannot
grant such a motion because the non-moving party must be
afforded the opportunity to present evidence, and the court
must evaluate that evidence in order to grant a motion under
Rule 50.

Defendants argue that because qualified immunity is a
complete immunity from suit, we should sanction the pre-trial
2
The motion filed by defendants also cannot serve as the basis for a
renewed motion of judgment as a matter of law under Rule 50(b), because
the timing and content of the motion could not have genuinely alerted
plaintiff to any evidentiary deficiencies in his case. See Fed. R. Civ. P. 50,
Advisory Comm. Notes to 1991 Amends., Subdivision (a) (noting that the
requirement in Rule 50(a)(2) that a motion contain the law and facts on
which a party is entitled to judgment is intended to ensure such informa-
tion is provided prior to the issuance of a judgment against the verdict
under Rule 50(b)).
 MCSHERRY v. CITY OF LONG BEACH 12653
use of Rule 50 in this case. Although qualified immunity
should be determined as early as possible, see Saucier v. Katz,
533 U.S. 194, 200-01 (2001), this policy does not override our
concern that McSherry was not provided an adequate opportu-
nity to present evidence in his case. Furthermore, disputed
issues of fact evident on the face of McSherry’s pre-trial con-
tentions of fact render judgment as a matter of law on the
basis of qualified immunity inappropriate at this time.

Treating the motion as a motion for judgment on the plead-
ings,3 it may be granted only if, taking all the allegations in
the pleading as true, the moving party is entitled to judgment
as a matter of law. Owens v. Kaiser Found. Health Plan, Inc.,
244 F.3d 708, 713 (9th Cir. 2001). Pre-trial dismissal on qual-
ified immunity grounds is inappropriate if the plaintiff estab-
lishes that material issues of fact exist. LaLonde v. County of
Riverside, 204 F.3d 947, 953 n.10 (9th Cir. 2000); see also id.
at 963 (“[T]he facts are disputed, and the disputed facts here
should have been submitted to the jury, even when qualified
immunity from suit was an issue.”) (Trott, J., concurring in
part and dissenting in part). “[T]here is a clearly established
constitutional due process right not to be subjected to criminal
charges on the basis of false evidence that was deliberately
fabricated by the government.” Devereaux, 263 F.3d at 1074-
75. The facts alleged by McSherry support a claim of deliber-
ate fabrication, and thus, on the basis of the pleadings, the
defendants are not entitled to qualified immunity as a matter
of law. McSherry contends that the victim did not provide,
nor could she have provided, the detailed description of the
interior of McSherry’s grandparents’ house because she was
3
Although McSherry was afforded an opportunity to file an opposition
to defendants’ motion for judgment as a matter of law, he was not
informed that he should treat the motion as a motion for summary judg-
ment and provide evidence in support of his claims. The judge could have
exercised his discretion to convert defendants’ motion to a summary judg-
ment motion, but he did not notify the parties of his intention do so. We
therefore treat the motion substantively as though it were a motion for
judgment on the pleadings.
12654 MCSHERRY v. CITY OF LONG BEACH
never in the house. Turley, however, testified during McSher-
ry’s prosecution that the victim provided a detailed, and accu-
rate, description of the interior of the home. McSherry has
raised a disputed issue of fact as to whether defendants fabri-
cated some of the evidence used to obtain McSherry’s convic-
tion. Although the evidence, when presented, may cast a
different light on the factual dispute, we cannot disregard
McSherry’s contentions at this time.

Because the district court inappropriately granted judgment
as a matter of law before McSherry had an opportunity to be
fully heard on the issue of qualified immunity, we remand the
case to the district court for further proceedings consistent
with this opinion.

III.

[6] The parties argued numerous motions in limine, of
which two are contested on appeal. Although neither party
raises the question of our ability to review these rulings, we
have an independent obligation to determine whether we have
subject matter jurisdiction. See Allstate Ins. Co. v. Hughes,
358 F.3d 1089, 1093 (9th Cir. 2004). We conclude that we
may not review these questions because the district court’s
preliminary evidentiary rulings are not final decisions review-
able under 28 U.S.C. § 1291. See United States v. Luce, 469
U.S. 38, 41-42 (1984); Coursen v. A. H. Robins Co., 764 F.2d
1329, 1342 (9th Cir.), corrected by 773 F.2d 1049 (9th Cir.
1985); see also Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir.
1996).4 No exception to the final decision rule of 28 U.S.C.
4
Although both Coursen and Palmieri involved litigants who attempted
to evade the bar on review of non-final decisions by obtaining dismissal
of their cases in order to appeal the interlocutory orders, that McSherry is
before us through no fault of his own is of no moment: the decisions on
appeal are not final. See Coursen, 764 F.2d at 1342 (“In this case appel-
lants did not seek an interlocutory appeal of the in limine ruling but rather
sought to obtain review of that ruling by moving for an involuntary dis-
 MCSHERRY v. CITY OF LONG BEACH 12655
§ 1291 exists under which we may review the district court’s
in limine rulings.

The reason that we may not review such rulings is clear.
For one, as the Supreme Court has noted:

Any possible harm flowing from a district court’s in
limine ruling . . . is wholly speculative. The ruling is
subject to change when the case unfolds. . . . Indeed
even if nothing unexpected happens at trial, the dis-
trict judge is free, in the exercise of sound judicial
discretion, to alter a previous in limine ruling.

Luce, 469 U.S. at 41-42. Furthermore, we may reverse the
district court’s evidentiary rulings only if McSherry demon-
strates that he has been prejudiced by the ruling, such that any
error “more probably than not . . . tainted the verdict.” Tenni-
son v. Circus Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir.
2001). “It is impossible to determine whether the movant will
be prejudiced by such ruling absent a trial, a ruling in the con-
text of trial, and the return of a verdict.” Coursen, 764 F.2d
at 1342. We conclude that we lack jurisdiction to review the
rulings, and so do not reach the merits of these questions.

IV.

[7] McSherry requests that the case be remanded to a dif-
ferent judge, arguing that “unusual circumstances” support a
reassignment. This court has the authority to remand a case to
a different judge, but generally only does so if the judge has
shown a personal bias or if “unusual circumstances” exist.

missal with prejudice. Appellant cannot make a nonfinal order appealable
by the simple expedient of taking a voluntary nonsuit and appealing.”)
(internal quotation marks and citation omitted). Palmieri, 88 F.3d at 139
(noting that “[t]his appeal illustrates the problems that arise when a party
tries to evade the final judgment rule.”)
12656 MCSHERRY v. CITY OF LONG BEACH
United States v. Sears Roebuck & Co., Inc., 785 F.2d 777,
779-80 (9th Cir. 1986). The factors for an “unusual circum-
stances” remand are:

(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously-
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.

Id. at 780. If either of the first two factors is present, reassign-
ment is appropriate. Id. We conclude that this case does not
call for the extraordinary measure of reassignment.

McSherry points to the judge’s decision to limit the length
of trial as evidence that the judge was biased. In considering
the judge’s stringent time limitations, we note that “[t]rial
courts have broad authority to impose reasonable time limits.
Such limits are useful to ‘prevent undue delay, waste of time,
or needless presentation of cumulative evidence.’ ” Navellier
v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (citation omit-
ted). Furthermore, the burden of a shorter trial fell upon both
parties.

McSherry also argues that the judge’s decision to grant the
Rule 50 motion suggests that he prejudged the evidence in the
case. The judge indicated that McSherry had not presented
any evidence that the LBPD fabricated testimony. This was an
admittedly unfair conclusion, because McSherry had not
really presented any evidence. However, this does not mean
that the judge would not consider the evidence fairly once
presented.

In general, the judge treated the parties evenhandedly and
with respect. He noted that he was “extremely impressed with
 MCSHERRY v. CITY OF LONG BEACH 12657
the professionalism” of the parties. Both sides won and lost
some evidentiary motions in limine. The court granted
McSherry’s motion to retax costs, penalizing the defense for
delay in bringing its qualified immunity motion. Although the
court erroneously granted defendants’ Rule 50 motion, the
record does not indicate that the judge would have “substan-
tial difficulty in putting out of his or her mind previously-
expressed views.” Sears Roebuck & Co., Inc., 785 F.2d at
780. Considerations of judicial efficiency also counsel that the
judge who has ruled on motions in limine and is familiar with
the parties’ trial plans would be best situated to serve as the
judge on remand, whether for trial or for other proceedings as
appropriate.

CONCLUSION

Because the district court inappropriately granted the City
of Long Beach’s motion for judgment as a matter of law
before any evidence had been presented, we reverse the grant
of judgment as a matter of law. We remand the case for fur-
ther proceedings as the district court deems appropriate. We
do not have jurisdiction to review the evidentiary rulings
because such rulings are not final decisions reviewable under
28 U.S.C. § 1291. We deny the request for reassignment.

REVERSED and REMANDED.