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[W] McSherry v. City of Long Beach

March 30, 2009; withdrawn October 20, 2009

LEONARD MCSHERRY, PLAINTIFF-APPELLANT,
v.
CITY OF LONG BEACH; LONG BEACH POLICE DEPARTMENT; NORMAN TURLEY, OFFICER; CARTHEL S. 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. D.C. No. CV-02-03767-RGK.

The opinion of the court was delivered by: Trott, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted February 14, 2008 -- Pasadena, California

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

This case is before us for the second time.*fn1 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 Department ("LBPD"), Officer Norman Turley, and Sergeant Carthel 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 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 summary judgment to Roberson on all claims. We deny McSherry'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 any way that produced false information"; 2) District Attorney 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 district 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 witness, Robin Davis, picked McSherry out of a lineup, identifying 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 interior 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 description of the place she had been taken. Turley's report documenting this interview states that the victim picked McSherry's grandparents' home out of a photo lineup, identifying it as the place McSherry had taken her. The report lists specific details allegedly provided by the victim about the room where she had been raped, including: descriptions of 1) a picture of the kidnapper on the wall; 2) a small brown television 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 location 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 regarding 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 ...


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