McSherry v. City of Long Beach

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LEONARD MCSHERRY, 
Plaintiff-Appellant,
v. No. 06-55837
CITY OF LONG BEACH; LONG BEACH
POLICE DEPARTMENT; NORMAN  D.C. No.
CV-02-03767-RGK
TURLEY, Officer; CARTHEL S.
OPINION
ROBERSON, in his individual and
official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Argued and Submitted
February 14, 2008—Pasadena, California

Filed March 30, 2009

Before: Stephen S. Trott, Richard R. Clifton, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Trott

3805
 MCSHERRY v. CITY OF LONG BEACH 3809

COUNSEL

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

Michael M. Mullins and Nowland C. Hong, Akerman Senter-
fitt LLP, Los Angeles, California, for the defendants-
appellees.

OPINION

TROTT, Circuit Judge:

This case is before us for the second time.1 In this appeal,
Leonard McSherry appeals the district court’s order granting
summary judgment on the ground of qualified immunity to
the City of Long Beach (“City”), Long Beach Police Depart-
ment (“LBPD”), Officer Norman Turley, and Sergeant Car-
thel S. Roberson. The allegations in this case stem from a
kidnaping, rape, and molestation that occurred in Long Beach,
California, in March of 1988. After McSherry served almost
fourteen years in prison for these crimes, he was exonerated
by DNA evidence and a confession by the actual perpetrator.
McSherry then brought this suit, alleging violations of his
civil rights pursuant to 42 U.S.C. § 1983.

McSherry argues that Defendants violated his civil rights
by: 1) fabricating the victim’s descriptions of the interior of

1
The first decision, McSherry v. City of Long Beach, (“McSherry I”), is
reported at 423 F.3d 1015, 1016 (9th Cir. 2005). It reviews in greater
detail the facts leading to McSherry’s arrest and conviction.
3810 MCSHERRY v. CITY OF LONG BEACH
the home where the rape occurred; 2) fabricating the victim’s
identification of the vehicle used in the kidnaping; 3) coercing
the victim’s identification of McSherry as the perpetrator; 4)
ignoring exculpatory evidence; and 5) arresting McSherry
without probable cause. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm in part, reverse in part, vacate
in part, and remand.

We conclude that genuine issues of material fact exist as to
whether Turley deliberately fabricated evidence. See
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en
banc). Accordingly, we reverse and remand this claim against
Turley, but affirm the district court with respect to all other
claims against him. Because the district court dismissed the
Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658
(1978), claim against the City and LBPD only because
McSherry did not show a constitutional violation at the hands
of Turley or Roberson, and these defendants did not assert
any other ground for dismissal on appeal, we vacate and
remand the claim. We affirm the district court’s grant of sum-
mary judgment to Roberson on all claims. We deny McSher-
ry’s request for reassignment to a different judge for the
reasons we articulated in McSherry I.

I

BACKGROUND

This appeal comes to us following remand to the district
court after we determined that the district correct incorrectly
granted judgment as a matter of law to Defendants on the first
day of the trial. McSherry I, 423 F.3d at 1022. On remand, the
district court granted summary judgment to Defendants on the
ground of qualified immunity. The district court held that
probable cause existed for McSherry’s arrest. It further held
that the fabrication of the evidence claims against Defendants
failed because: 1) McSherry did not present “any evidence
that Defendants deliberately fabricated evidence, or acted in
 MCSHERRY v. CITY OF LONG BEACH 3811
any way that produced false information”; 2) District Attor-
ney Ken Lamb conducted an independent investigation of the
evidence; and 3) McSherry “failed to make or support any
factual allegations of any fabrication of evidence . . . that were
logically capable of supporting” a claim that Turley used
unconstitutionally suggestive interview techniques. The dis-
trict court held also that the Monell claim against the City and
LBPD failed because McSherry did not show a constitutional
violation by either Roberson or Turley.

The issues now before us arise out of the following facts.
In March of 1988, the six-year-old victim was kidnaped from
a playground on a Navy Base in California. The perpetrator
raped and molested her before releasing her several hours
later. According to police reports, the victim and her four-
year-old brother, a witness to the kidnaping, both provided
descriptions of the suspect to the police. Several weeks later,
Turley showed both children a photo lineup separately, and
both identified McSherry as the perpetrator. Turley’s police
reports indicate that he showed the victim and her brother
photos of cars. Both selected a yellow Mazda station wagon
belonging to McSherry’s father, identifying it as the vehicle
used in the abduction. After McSherry’s arrest, an adult wit-
ness, Robin Davis, picked McSherry out of a lineup, identify-
ing him as a person she had seen in the area on the day of the
kidnaping.

McSherry was arrested for the crime on May 17, 1988.
According to police reports, Turley and Roberson interrogated
McSherry, and he provided a detailed description of the inte-
rior of his grandparents’ residence. On May 18, the day after
McSherry’s arrest, Turley and Navy Investigative Officer
Tammy Warmack interviewed the victim to obtain a descrip-
tion of the place she had been taken. Turley’s report docu-
menting this interview states that the victim picked
McSherry’s grandparents’ home out of a photo lineup, identi-
fying it as the place McSherry had taken her. The report lists
specific details allegedly provided by the victim about the
3812 MCSHERRY v. CITY OF LONG BEACH
room where she had been raped, including: descriptions of 1)
a picture of the kidnapper on the wall; 2) a small brown tele-
vision sitting on a gray dresser; 3) a small, possibly twin size
bed, with blue sheets and a white blanket; 4) a black chair;
and 5) a mirror alongside the door.

On May 19, Turley and Warmack served a search warrant
at McSherry’s grandparents’ house. Turley’s subsequent
police report states that the victim’s description provided on
May 18, matched a bedroom in the residence. Furthermore,
according to the report, while executing the warrant officers
noticed a bird in the livingroom area and a barking dog in the
backyard.

On May 24, following the execution of the search warrant,
Turley and Warmack re-interviewed the victim to determine
if she could provide a more detailed description of the loca-
tion where she was taken. During that interview, the officers
asked if she had heard or seen any animals at the place she
was taken. According to Turley’s report, the victim said she
heard a bird. Turley asked her several other questions regard-
ing the interior of the house, and the victim’s responses
matched details of the interior of the residence. Specifically,
according to Turley, the victim gave the following additional
details: 1) the room had one door that folded up and one door
that swung open; 2) the mirror was big and round; 3) the pic-
ture of the kidnapper was round and hanging on the same wall
where the television was located; and 4) the room had a win-
dow with a seat.2

Turley testified at trial, again attributing the descriptions of
the interior of the residence to the victim. Also at trial, the
2
According to Turley’s report, although the victim said also that there
was a white push button phone in the bedroom, officers only observed a
black rotary phone in the room. Turley stated in his report that the investi-
gators believed the victim may have been remembering the phone in the
house where the kidnapper released her.
 MCSHERRY v. CITY OF LONG BEACH 3813
victim and Davis identified McSherry as the perpetrator.
Medical evidence indicated that McSherry was a possible
donor of the semen taken from the victim’s underwear.

Following the trial, McSherry was convicted of the crimes.
In December of 2001, nearly fourteen years into his forty-
eight-year to life sentence, McSherry was exonerated by DNA
evidence. The DNA revealed that George Valdespino had
committed the crime. Valdespino later confessed.

II

STANDARD OF REVIEW

We review de novo a district court’s grant of summary
judgment on the ground of qualified immunity. Blankenhorn
v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). “We
may not affirm a grant of summary judgment if there is any
genuine issue of material fact or the district court incorrectly
applied the substantive law.” Id. All justifiable inferences are
to be drawn in favor of the non-moving party and his evi-
dence is to be believed. Id.

III

DISCUSSION

[1] “Qualified immunity is ‘an entitlement not to stand trial
or face the other burdens of litigation.’ ” Saucier v. Katz, 533
U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)). Qualified immunity is a two-part test. We
must determine whether, taken in the light most favorable to
McSherry, Defendants’ conduct amounted to a constitutional
violation, and, if so, we must determine whether or not the
right was clearly established at the time of the violation. Id.
at 201 We may address the prongs in the sequence we see fit.
Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818
(2009).
3814 MCSHERRY v. CITY OF LONG BEACH
A. Fabrication of Evidence

1. Turley

In support of his claim that officers deliberately fabricated
evidence, McSherry points in particular to the description of
the interior of his grandparents’ residence and argues that: 1)
he provided Turley a detailed description of his grandparents’
house after he was arrested; 2) Turley interviewed the victim
the next day, then later documented in his police report and
also testified at trial that the victim provided a detailed
description of the interior of the residence during that inter-
view; 3) the victim’s detailed description differed from her
initial description but matched the grandparents’ residence; 4)
after Turley searched the house, he reported that the victim
provided another description with more matching details, 5)
fourteen years after she was kidnaped, the victim denied giv-
ing the descriptions that Turley documented and testified to;
and 6) because McSherry was exonerated of the crimes and
another party confessed, the victim obviously was never in the
residence and could not have provided such a detailed
description.

[2] The victim’s deposition creates a genuine issue of mate-
rial fact as to whether Turley fabricated evidence. She denied
providing the detailed description of the residence ascribed to
her by Turley. Specifically, the victim said she did not tell
police there was a picture on the wall because there was not
one. She also denied telling the police that there were blue
sheets and a white blanket on the bed. When asked whether
she had told police that there was a folded up door in the
room where she was taken, she said “No. There was no way
that a five-year-old can actually remember everything in the
house. I mean that’s too much for a five-year-old. There’s no
way. That’s too much information in a house for a five-year-
old to describe.” She denied also telling police that there was
a window seat, that she heard a bird, or that there was a circu-
lar mirror. That Turley included that information, attributed to
 MCSHERRY v. CITY OF LONG BEACH 3815
the victim, in his reports means there are genuine issues of
material fact as to whether Turley fabricated the descriptions.
Credibility is an issue for the trier of fact.

[3] As a result, Turley is not entitled to qualified immunity.
If the evidence was fabricated, Turley violated McSherry’s
“clearly established constitutional due process right not to be
subjected to criminal charges on the basis of false evidence
that was deliberately fabricated by the government.”
Devereaux, 263 F.3d at 1074-75. Consequently, we reverse
the judgment of the district court as to this claim that Turley
deliberately fabricated evidence. At trial, McSherry may sup-
port his deliberate fabrication claim with evidence that Turley
“used investigative techniques that were so coercive and abu-
sive that [he] knew or should have known that those tech-
niques would yield false information.” Id. at 1076. McSherry
may present direct or circumstantial evidence, including evi-
dence about identifications of McSherry by the victim, the
victim’s brother, and an adult witness, and identifications of
McSherry’s father’s car by the victim and the victim’s
brother.

McSherry argues also that Turley is liable for his allegedly
false trial testimony regarding the descriptions of the interior
of the residence. This claim is foreclosed by Briscoe v.
LaHue, 460 U.S. 325, 326 (1983) (holding that police officers
are immune from liability under 42 U.S.C. § 1983 for per-
jured testimony).3
3
McSherry relies on Harris v. Roderick, 126 F.3d 1189, 1198-99 (9th
Cir. 1997) for the proposition that Turley is not entitled to immunity
because he initiated the prosecution. We do not find this argument persua-
sive. Harris holds that if officers “functionally served as complaining wit-
nesses who may be said to have initiated [the] prosecution they are not
entitled to absolute immunity for their false statements.” 126 F.3d at 1199.
In Harris, unlike the case at bar, there were no other complaining wit-
nesses, only the officers. Here, the victim served as the complaining wit-
ness.
3816 MCSHERRY v. CITY OF LONG BEACH
2. Roberson

[4] We hold that no genuine issue of material fact exists as
to whether Roberson fabricated evidence. There are no police
reports by Roberson in the record attributing the allegedly
fabricated descriptions of the interior of the residence to the
victim. Roberson did not participate in the interviews with the
victim, nor did he participate in serving the search warrant at
the residence. Furthermore, nothing in the victim’s deposition
testimony indicates that Roberson attributed fabricated
descriptions of the residence to her.

3. Monell Claim against the City

[5] Under the Monell doctrine, McSherry may recover from
the City and LBPD if his injury was inflicted pursuant to city
policy, regulation, custom, or usage. See Monell, 436 U.S. at
690-91, 694. The district court dismissed the claims against
the City and LBPD only because McSherry did not show a
constitutional violation at the hand of Turley or Roberson, and
the City and LBPD did not present any other argument in sup-
port of the judgment in favor of the City and LBPD. Based
on our determination that there is a genuine issue of material
fact as to whether Turley committed a constitutional violation,
and because the defendants have not asserted any other
ground for dismissal on appeal, we vacate and remand the
Monell claim against the City and LBPD.

B. Exculpatory Evidence

[6] McSherry argues also that Defendants violated the Due
Process Clause of the Fourteenth Amendment by ignoring
exculpatory evidence. “A police officer’s failure to preserve
or collect potential exculpatory evidence does not violate the
Due Process Clause unless the officer acted in bad faith.”
Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th
Cir. 2003).
 MCSHERRY v. CITY OF LONG BEACH 3817
[7] McSherry claims that Defendants acted in bad faith
when they ignored: 1) Valdespino’s arrest for a crime similar
to the victim’s abduction one week later in a nearby county;
2) the fact that initial identification statements by Davis, the
victim, and the victim’s brother did not resemble McSherry;
and 3) the possibility that Davis’s identification was influ-
enced by a newspaper photograph of McSherry. These claims
fail. First, McSherry does not offer any evidence that in 1988
Defendants knew that Valdespino was arrested in a nearby
county for a similar crime. Absent such a showing, there is no
evidence of bad faith.

[8] Second, as to the descriptions given by the children,
Defendants “must be given some latitude in determining when
to credit witnesses’ denials and when to discount them, and
we are not aware of any federal law . . . that indicates pre-
cisely where the line must be drawn.” Devereaux, 263 F.3d at
1075. Defendants do not dispute that McSherry did not resem-
ble the initial descriptions given by the two children, how-
ever, nothing in the record shows that Defendants acted in bad
faith by relying on the children’s photo lineup identification
of McSherry rather than their initial descriptions.

[9] Third, with respect to Davis’ identification of McSherry
in a photo lineup, McSherry argues that Davis was shown a
photo lineup after McSherry’s picture appeared in the paper,
implying that she chose him because she recognized him from
the newspaper photo. This evidence does not prove bad faith
because McSherry must “ ‘put forward specific, nonconclu-
sory factual allegations’ that establish improper motive.” Jef-
fers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001) (per curiam)
(quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).
McSherry does not offer any evidence that Davis ever saw the
picture nor that she based her subsequent identification on
that picture. Furthermore, because Davis selected McSherry’s
picture from the lineup, we do not find bad faith on the part
of Defendants in relying on this identification rather than her
initial description.
3818 MCSHERRY v. CITY OF LONG BEACH
C. Probable Cause

[10] McSherry claims that Defendants had no probable
cause to arrest him because they: 1) fabricated evidence; 2)
used suggestive interview techniques; 3) manipulated or
coerced witnesses; and 4) disregarded exculpatory evidence.
“Probable cause arises when an officer has knowledge based
on reasonably trustworthy information that the person arrested
has committed a criminal offense.” Gausvik v. Perez, 345
F.3d 813, 818 (9th Cir. 2003) (citing Beck v. Ohio, 379 U.S.
89, 91 (1964)).

[11] We have already determined that there are no genuine
issues of material fact as to whether Defendants used
improper interview techniques or ignored exculpatory evi-
dence. Even if the description of the interior of the residence
was fabricated, Defendants had probable cause for the arrest.
Here, the victim and her brother identified McSherry as the
perpetrator and his father’s car as the vehicle used to perpe-
trate the crime. Medical evidence indicated that semen taken
from the victim’s underwear could belong to McSherry. We
hold that these facts established probable cause for the arrest.
See id.

D. Independent Investigation by District Attorney Lamb

[12] Defendants argue that they cannot be held liable for
any damages McSherry suffered after the district attorney
filed charges against him. We disagree. “[W]here police offi-
cers do not act maliciously or with reckless disregard for the
rights of an arrested person, they are not liable for damages
suffered by the arrested person after a district attorney files
charges unless the presumption of independent judgment by
the district attorney is rebutted.” Smiddy v. Varney, 665 F.2d
261, 267 (9th Cir. 1981). The presumption may be rebutted if
McSherry met his burden of showing that “officers knowingly
withheld relevant information with the intent to harm [him],
 MCSHERRY v. CITY OF LONG BEACH 3819
or that the officers knowingly supplied false information.”
Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986).

[13] In this case, the presumption may be rebutted because,
if Turley fabricated evidence regarding the victim’s descrip-
tion of the interior of the residence, he knowingly supplied
false information to Lamb. We hold that the investigation and
filing of charges by District Attorney Lamb does not insulate
Defendants from liability.

IV

CONCLUSION

Because genuine issues of material fact exist as to whether
Turley fabricated evidence, we reverse the grant of summary
judgment as to Turley on this claim and vacate and remand
the grant of summary judgment on the Monell claim against
the City and LBPD. We affirm the district court’s grant of
summary judgment to Roberson on all claims, and to Turley,
the City, and LBPD on all remaining claims.

AFFIRMED in part, REVERSED in part, VACATED in
part, and REMANDED.

The parties shall bear their own costs of this appeal.