McSherry v. City of Long Beach

• Decision Date: 08 September 2005
• Docket Number: No. 03-57064.,03-57064.
• Citation: 423 F.3d 1015
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

423 F.3d 1015

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.

No. 03-57064.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2005.

Filed September 8, 2005.

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

Noland C. Hong (argued), Michael M. Mullins (on the briefs), Brown, Winfield & Canzoneri, 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.

Before: FARRIS, D.W. NELSON, and TALLMAN, Circuit Judges.

D.W. NELSON, Circuit Judge:

Leonard McSherry appeals the district court's order granting defendant City of Long Beach's ("City's") motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. The court granted defendant's motion on the first day scheduled for trial, prior to the presentation of any evidence in the case. We conclude that the motion was inappropriately 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, Officers Turley and Roberson, violated his constitutional rights during an investigation that led to his conviction for child molestation. McSherry had served nearly fourteen years of a 48-year to life prison sentence before DNA evidence exonerated him and the Superior Court of Los Angeles County ordered his release.

The investigation at issue in this case concerned the kidnapping, molestation, and rape of a six-year-old girl in March 1988. Her abduction from a playground in Long Beach, California, was witnessed by her four-year-old brother. Long Beach Police Department (LBPD) investigators first interviewed 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 grandfather." 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 suspicious 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 pickup 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 attempt to determine if a suspect who matched the victim's initial description was the perpetrator. Although his appearance 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 vehicle she rode in. The victim also participated in a lineup. 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 lineup.

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 grandparents' house, though it did not match her earlier descriptions. 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 Turley's testimony about the victim's identification and description of McSherry's grandparents' house. He was sentenced 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 photos 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 Fourteenth 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 trifurcated into separate trials on individual liability, municipal liability, and damages, and that the liability of Officers Turley and Roberson be tried first.

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 officers had qualified immunity and thus that there was no evidence 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 evidence with his filing; the defense included only limited evidentiary 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 district 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 defendants 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, dismissed the individual liability claims against them, and dismissed 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 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 Solutions, 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...