584 F.3d 1129 (9th Cir. 2009), 06-55837, McSherry v. City of Long Beach

Docket Nº:06-55837.
Citation:584 F.3d 1129
Opinion Judge:TROTT, Circuit Judge:
Party Name: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.
Attorney:Mark E. Overland, Los Angeles, CA, for the plaintiff-appellant. Michael M. Mullins and Nowland C. Hong (argued), Akerman Senterfitt LLP, Los Angeles, CA, for the defendants-appellees.
Case Date:October 20, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1129

584 F.3d 1129 (9th Cir. 2009)

Leonard McSHERRY, Plaintiff-Appellant,


CITY OF LONG BEACH; Long Beach Police Department; Norman Turley, Officer; Carthel S. Roberson, in his individual and official capacities, Defendants-Appellees.

No. 06-55837.

United States Court of Appeals, Ninth Circuit.

October 20, 2009

Argued and Submitted Feb. 14, 2008.

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[Copyrighted Material Omitted]

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Mark E. Overland, Los Angeles, CA, for the plaintiff-appellant.

Michael M. Mullins and Nowland C. Hong (argued), Akerman Senterfitt LLP, Los Angeles, CA, for the 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The Opinion filed March 30, 2009, slip op. 3805, and appearing at 560 F.3d 1125 (9th Cir.2009), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

The superseding opinion will be filed concurrently with this order. The parties may file an additional petition for rehearing or rehearing en banc. All other pending motions are denied as moot.


TROTT, Circuit Judge:


After Leonard McSherry (" McSherry" ) served almost fourteen years in prison for allegedly kidnaping, raping, and molesting a six-year-old girl, he was exonerated by DNA evidence acquired from George Valdespino and Valdespino's subsequent confession to these crimes. McSherry was released from prison pursuant to a writ of habeas corpus issued by the Los Angeles Superior Court. Alleging violations of his civil rights pursuant to 42 U.S.C. § 1983, he then filed suit related to his arrest and conviction against Defendants City of Long Beach, Long Beach Police Department (" LBPD" ), and the officers he claimed were responsible for his faulty conviction, Detective Norman Turley (" Turley" ), and Sergeant Carthel S. Roberson (" Roberson" ).

This appeal follows the district court's plenary grant of summary judgment to Defendants on the basis of qualified immunity. We have jurisdiction, and we affirm. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1030 (9th Cir.2004) (" We may affirm the district court's grant of summary judgment on any basis supported in the record." ).

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A. Factual Background

1. The initial descriptions of the suspect and car

In March of 1988, a six-year-old girl was kidnaped from a playground on a Navy base in Long Beach, California. She was molested and raped by her kidnapper and then released. The abduction was witnessed by her four-year-old brother. Within ten hours of the kidnaping, LBPD patrol officers interviewed her. Initially she described her kidnapper as a short, fat, white male with black hair, who was older than her grand-father. Her brother told police that the man who took his sister was " red in color" and had black hair. Both sister and brother said the suspect made her get into a green car.

Shortly after the victim's return, a neighbor, Robin Davis (" Davis" ), reported she had seen a white male, thirty-five years old or older, 5'7" -5'9" tall, heavy, with dark brown to black hair, a mustache, heavy black eyebrows, and a chubby pock-marked face, in the area on the day the victim was abducted. Davis said she saw an unattended 1970's model, dark green, larger model pickup truck with a white cab-over camper in the parking lot by the playground.

2. Photo and physical identifications of McSherry and the vehicle

On April 19, 1988, Officer Turley interviewed the victim in the Charter Hospital in Long Beach, California. He showed her a photo line-up that included a suspect named John Larocco. The other photos in the lineup, including McSherry's, were simply " fillers."

McSherry's photo was on file because of his criminal record. On June 16, 1970, McSherry forcibly abducted and sexually molested a six-year-old girl and later pleaded guilty to felony child molestation. On January 15, 1975, McSherry was convicted of lewd and lascivious conduct towards an eight-year-old girl and served four years in state prison. On July 8, 1979, McSherry was convicted of kidnaping a fifteen year-old girl, and served six years before being paroled. In 1986 McSherry was convicted of a misdemeanor involving children and sentenced to county jail. Turley was a witness in that case. McSherry's official record shows that he first registered as a sex offender in California with respect to children in 1971 and renewed that registration in 1985.

Turley said that because he believed McSherry was still in jail on his 1986 misdemeanor conviction at the time the crime under investigation was committed, McSherry was not a suspect. Unexpectedly, the victim picked McSherry's photo out of the lineup. Later, Turley learned that McSherry had been released early from jail before this crime occurred.

During that same interview, Turley showed the victim pictures of sixteen different campers/trucks to try and determine in what kind of vehicle she had been kidnaped, but she said the vehicle was a car, not a truck. Turley said she seemed confused but could communicate.

On April 21, 1988, Turley re-interviewed the victim. He showed her the same photo lineup as he had shown her on the 19th, but, out of " fairness," in a different order. She again picked McSherry. Turley also showed her photographs of nine cars. She identified a car, and then after Turley asked her if she was sure, she identified a different car. Turley determined that she was confused and told her that he wanted her to look at all of the cars before she told him if she saw the car or not. Turley changed the order of the photographs, and she picked out McSherry's father's yellow station wagon.

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On May 16, 1988, Turley and Navy Investigative Officer Tammy Warmack (" Warmack" ) interviewed the victim's brother. They showed him a photo lineup of nine vehicles, and he picked out the same car his sister had chosen. He then identified McSherry from a photo lineup.

Subsequently, on July 21, 1988, the victim and her brother were taken at the request of McSherry's attorney to a court-ordered physical lineup. After the lineup was over and she was out in the hallway, she volunteered first to her mother and then to Warmack that the person who took her was number three (McSherry), not number six, as she had written down. She said that she wrote down six because she was afraid. Ten minutes later, she reaffirmed these statements to Roberson. During the same lineup, her brother picked out number four. The victim also positively identified McSherry under oath during a preliminary hearing and later at trial.

Robin Davis picked McSherry's photo out of a lineup on May 18, 1988, the day after McSherry was arrested. This lineup was witnessed by Warmack. Warmack said that Davis' selection of McSherry " appeared independent" ( i.e., not coached). Davis selected McSherry again in a later physical lineup, made an in-court identification of him during a preliminary proceeding, and identified him again in court at his trial.

At McSherry's trial, Turley testified that each time he showed photos to the victim, her brother, and Davis, he told them that they did not have to identify anyone, or any particular vehicle. With respect to the victim and her brother, this admonition is reflected in the police reports. Warmack testified at McSherry's trial that Turley did not make any effort to influence the victim in her selections during the photo line-ups.

3. The descriptions and identification of the house

Turley and Roberson arrested McSherry for these crimes on May 17, 1988. In her initial interview with police, the victim described the place where she was taken as a white house with two rooms, a bedroom and a bathroom. She said the numbers one and zero were on the door. At some other point, when Turley and Roberson were driving her around, she said that the house was brown.

The day after McSherry's May 17th arrest, Turley and Warmack interviewed the victim again. She picked McSherry's grandparents' home out of a photo lineup, identifying it as the place McSherry had taken her. The grandparents' residence was blue and white. She provided specific details about the room where she had been raped. Warmack said most of the questions were open ended. On the same day, Deputy District Attorney Ken Lamb authorized on behalf of the Los Angeles County District Attorney's Office the filing of a felony complaint charging McSherry with various felonies against the victim.

On May 19th, police served a search warrant at McSherry's grandparents' house. The victim's description generally matched a bedroom in the residence. While executing the warrant, officers noticed a bird in the living room area, and a barking dog in the backyard. Turley re-interviewed the victim on May 24th and asked if she had heard or seen any animals. She said she heard a bird. He asked her several other questions regarding the interior of the house, and her responses matched details of the residence. Finally, when asked if she saw a phone, she said she saw a white push button phone. McSherry's room contained only a black rotary phone.

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B. Procedural History of the Present Case

McSherry brought suit under 42 U.S.C. § 1983, alleging (1) Fourteenth Amendment due process violations for unconstitutional interview procedures; (2) Fourth and Fourteenth Amendment false arrest claims based on false witness identifications; (3) failure to train and supervise; (4) negligent...

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