McSherry v. City of Long Beach ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD MCSHERRY, 
Plaintiff-Appellant,
v. No. 06-55837
D.C. No.
CITY OF LONG BEACH; LONG BEACH
POLICE DEPARTMENT; NORMAN  CV-02-03767-RGK
TURLEY, Officer; CARTHEL S. ORDER AND
ROBERSON, in his individual and OPINION
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
Order and Opinion Filed October 20, 2009
Before: Stephen S. Trott, Richard R. Clifton, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Trott
14575
14578 MCSHERRY v. CITY OF LONG BEACH
COUNSEL
Mark A. Borenstein, Overland Borenstein Scheper & Kim
LLP, Los Angeles, California, for the plaintiff-appellant.
Michael M. Mullins and Nowland C. Hong (argued), Aker-
man Senterfitt LLP, Los Angeles, California, for the
defendants-appellees.
ORDER
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appearing at 560 F.3d 1125 (9th Cir. 2009), is withdrawn.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 dis-
trict court of the Ninth Circuit.
MCSHERRY v. CITY OF LONG BEACH 14579
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.
OPINION
TROTT, Circuit Judge:
I
After Leonard McSherry (“McSherry”) served almost four-
teen years in prison for kidnaping, raping, and molesting a
six-year-old girl, he was exonerated by DNA evidence
acquired from George Valdespino and Valdespino’s subse-
quent 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.”).
14580 MCSHERRY v. CITY OF LONG BEACH
II
BACKGROUND
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 inter-
viewed 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 McSher-
ry’s, were simply “fillers.”
McSherry’s photo was on file because of his criminal
record. On June 16, 1970, McSherry forcibly abducted and
MCSHERRY v. CITY OF LONG BEACH 14581
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 regis-
tered 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 sus-
pect. 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 pic-
tures 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 con-
fused 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 deter-
mined 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.
On May 16, 1988, Turley and Navy Investigative Officer
Tammy Warmack (“Warmack”) interviewed the victim’s
14582 MCSHERRY v. CITY OF LONG BEACH
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 prelim-
inary 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 particu-
lar vehicle. With respect to the victim and her brother, this
admonition is reflected in the police reports. Warmack testi-
fied 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
MCSHERRY v. CITY OF LONG BEACH 14583
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 McSher-
ry’s grandparents’ home out of a photo lineup, identifying it
as the place McSherry had taken her. The grandparents’ resi-
dence 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 Dis-
trict Attorney Ken Lamb authorized on behalf of the Los
Angeles County District Attorney’s Office the filing of a fel-
ony 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 vic-
tim on May 24th and asked if she had heard or seen any ani-
mals. 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 but-
ton phone. McSherry’s room contained only a black rotary
phone.
B. Procedural History of the Present Case
McSherry brought suit under 42 U.S.C. § 1983, alleging (1)
Fourteenth Amendment due process violations for unconstitu-
tional interview procedures; (2) Fourth and Fourteenth
Amendment false arrest claims based on false witness identi-
fications; (3) failure to train and supervise; (4) negligent hir-
ing; and (5) supervisory liability. He claimed damages arising
14584 MCSHERRY v. CITY OF LONG BEACH
from Turley’s and Roberson’s alleged errors that directly and
proximately caused his wrongful arrest, trial, conviction, and
incarceration.
In October 2003, on the first day scheduled for trial, the
district court granted Defendants’ Motion for Judgment as a
Matter of Law under Fed. R. Civ. P. 50 on the ground of qual-
ified immunity. McSherry appealed. A panel of our court held
on procedural grounds that a “district court may not grant a
motion filed under Rule 50 prior to the presentation of any
evidence in a case . . . because the non-moving party must be
afforded the opportunity to present evidence, and the court
must evaluate that evidence. . . .” McSherry v. City of Long
Beach, 423 F.3d 1015, 1021 (9th Cir. 2005). The panel
explained that it was concerned that “McSherry was not pro-
vided an adequate opportunity to present evidence in his case.
Furthermore, disputed issues of fact evident on the face of
McSherry’s pre-trial contentions of fact render judgment as a
matter of law on the basis of qualified immunity inappropriate
at this time.” Id. The panel explained also that treating the
motion as a motion for judgment on the pleadings, “[t]he facts
alleged by McSherry support a claim of deliberate fabrication,
and thus, on the basis of the pleadings, the defendants are not
entitled to qualified immunity as a matter of law.” Id. at 1021-
22 (emphasis added). In a footnote, we said that McSherry
“was not informed that he should treat [Defendants’ motion]
as a motion for summary judgment and provide evidence in
support of his claims.” Id. at 1021 n.4. We remanded to the
district court “for further proceedings consistent with this
opinion.” Id. at 1022. We denied McSherry’s request that the
case be remanded to a different judge. Id. at 1024.
On remand, the district court granted summary judgment to
Defendants on the ground of qualified immunity. The court
held that probable cause existed for McSherry’s arrest. It fur-
ther held that the fabrication of the evidence claim failed
because (1) McSherry did not present “any evidence that
Defendants deliberately fabricated evidence, or acted in a way
MCSHERRY v. CITY OF LONG BEACH 14585
that produced false information”; (2) the District Attorney had
conducted an independent investigation of the evidence, and
under the totality of the circumstances, there was “no evi-
dence that Defendants knew or should have known that
McSherry was innocent”; and (3) McSherry “failed to make
or support any factual allegations of any fabrication of evi-
dence . . . that were logically capable of supporting” a claim
that Turley used unconstitutionally suggestive interview tech-
niques. Finally, the district court held that the Monell v. Dep’t
of Soc. Servs. of City of New York, 436 U.S. 658 (1978), claim
against the City and LBPD failed because McSherry did not
show a constitutional violation by either Roberson or Turley.
III
DISCUSSION
A. Standard of Review
This court reviews de novo a district court’s grant of sum-
mary 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. Stripped to its
core, our inquiry is “whether the evidence presented a suffi-
cient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). In making this determination, we view the evidence
in the light most favorable to McSherry. All justifiable infer-
ences are to be drawn in his favor and his evidence is to be
believed. We may affirm on the basis of any ground sup-
ported by the record. San Jose Christian College, 360 F.3d at
1030.
14586 MCSHERRY v. CITY OF LONG BEACH
B. Analysis
1. Probable cause for the arrest
McSherry claims that Defendants lacked probable cause to
arrest him because they: (1) used suggestive interview tech-
niques; (2) manipulated or coerced witnesses; (3) fabricated
evidence; and (4) disregarded exculpatory evidence.
[1] “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)). “Because many situations which confront
officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their
part.” Brinegar v. United States, 338 U.S. 160, 176 (1949).
Here, before McSherry was arrested, the victim on two
occasions positively identified McSherry as her attacker, and
also identified his father’s car as the vehicle used to facilitate
the crime. Scientific evidence reported by the Sheriff’s Crime
Laboratory indicated that semen taken from the victim’s
underwear could belong to McSherry in that he could not be
excluded as the person whose semen was found. Also,
McSherry’s modus operandi known to the police from previ-
ous convictions was similar to the manner in which the victim
was abducted and sexually assaulted.
[2] McSherry attempts to undercut probable cause with
allegations that the officers 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 claims that Defendants acted in bad faith when
they ignored: 1) George Valdespino’s arrest for a crime simi-
MCSHERRY v. CITY OF LONG BEACH 14587
lar 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 influenced by a newspaper photograph of McSherry.
These claims fail.
[3] First, McSherry does not offer any evidence that Defen-
dants knew in 1988 that Valdespino was arrested in a nearby
county for a similar crime. Absent such a showing, there is no
evidence of bad faith.
[4] Second, as to the descriptions of the perpetrator given
by the victim and her brother, police officers “must be given
some latitude in determining when to credit witnesses’ denials
and when to discount them, and we are not aware of any fed-
eral law . . . that indicates precisely where the line must be
drawn.” Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir.
2001) (en banc). Turley and Roberson do not dispute that
McSherry did not closely resemble the initial descriptions
given by the two children, however, nothing in the record
shows that the officers acted in bad faith by relying on the
children’s photo lineup identification of McSherry rather than
their initial descriptions.
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 bald assertion does not demon-
strate bad faith. McSherry does not offer any evidence what-
soever that Davis ever saw the picture, or that she based her
subsequent identification on that picture.
Fourth, McSherry’s allegations of the use of improper,
unreliable and suggestive identification procedures turn out
upon examination to be without adequate factual support. Sur-
mise, conjecture, theory, speculation and an advocate’s sup-
14588 MCSHERRY v. CITY OF LONG BEACH
positions cannot “do duty for probative facts” and valid
inferences. Poppell v. City of San Diego, 149 F.3d 951, 962
(9th Cir. 1998).
As for McSherry’s allegations of fabrication of evidence,
this claim pertains to incidents involving McSherry’s grand-
parents’ home as possibly the location of the sexual assault.
These matters occurred after McSherry’s arrest and are there-
fore irrelevant to the question of probable cause.
[5] The probable cause to arrest McSherry as well as to
hold him to answer for trial was confirmed in a preliminary
hearing held before a neutral magistrate where the victim
again identified McSherry as her attacker, this time under
oath. Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (“[W]e hold
that the Fourth Amendment requires a judicial determination
of probable cause as a prerequisite to extended restraint of lib-
erty following arrest.”). Neither Turley nor Roberson testified
at this hearing which resulted in the filing of a felony infor-
mation against McSherry in Los Angeles Superior Court.
[6] “In California, . . . it is a long-standing principle of
common law that a decision by a judge or magistrate to hold
a defendant to answer after a preliminary hearing constitutes
prima facie — but not conclusive — evidence of probable
cause.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th
Cir. 2004) (emphasis in original). We held in Awabdy that one
way a “plaintiff can rebut a prima facie finding of probable
cause is by showing that the criminal prosecution was induced
by fraud, corruption, perjury, fabricated evidence, or other
wrongful conduct undertaken in bad faith.” Id. To do so, a
plaintiff must be “able to prove the allegations in his com-
plaint that the criminal proceedings were initiated on the basis
of the defendants’ intentional and knowingly false accusations
and other malicious conduct.” Id. McSherry has not alleged
facts sufficient to create a genuine dispute on this issue for
reasons discussed in section B.2 of this opinion.
MCSHERRY v. CITY OF LONG BEACH 14589
[7] Accordingly, we hold that there exists no genuine issue
of material fact regarding probable cause or the legality of
McSherry’s arrest and detention for trial. Finding no constitu-
tional violation on this issue, we affirm the district court.
2. Causation
[8] In Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008),
a case decided after briefs were filed and we heard oral argu-
ment in this matter,1 we held that “in any constitutional tort
case . . . in which a prosecutor has instigated a prosecution,
it is necessary, if not sufficient, that a plaintiff seeking to sue
non-prosecutorial officials alleged to be responsible post-
complaint for the arrest or prosecution show the absence of
probable cause.” Id. at 865 (citing Smiddy v. Varney, 665 F.2d
261 (9th Cir. 1981), and Hartman v. Moore, 547 U.S. 250
(2006)). Relying on the Supreme Court’s decision in Hart-
man, we said “[a] prosecutor’s independent judgment may
break the chain of causation between the unconstitutional
actions of other officials and the harm suffered by a constitu-
tional tort plaintiff.” Beck, 527 F.3d at 862. We added that
“[p]ut in traditional tort terms, the prosecutor’s independent
decision can be a superseding or intervening cause of a consti-
tutional tort plaintiff ’s injury, precluding suit against the offi-
cials who made an arrest or procured a prosecution.” Id. See
also, Stoot v. City of Everett, ___ F.3d ___, ___ (No. 07-
35425 9th Cir. August 13, 2009) (an intervening decision of
an informed neutral decision-maker may break the chain of
causation).
In Beck, we concluded on the record (1) that Beck was
arrested without probable cause, and (2) that the officers had
not met their burden to show that the prosecutor’s charging
decisions acted as an “intervening cause,” thus shielding them
from liability. Beck, 527 F.3d at 870.
1
Both parties have now given us their views on Beck and Hartman.
14590 MCSHERRY v. CITY OF LONG BEACH
[9] On the record in this case, however, the opposite is true.
Substantial evidence of probable cause existed for McSher-
ry’s arrest and to bind him over for trial. There is no question
that the prosecutor’s actions in authorizing all charges against
McSherry and conducting his prosecution were (1) amply
supported by probable cause at all stages of the process, and
(2) the result of his independent professional judgment based
upon a thorough review of the evidence, a judgment that was
predicated on eyewitness identification related to him and
uninfluenced by either Turley or Roberson or the “evidence”
McSherry claims was fabricated. Because McSherry cannot
survive summary judgment on this critical issue, his related
claims must fail.
In the ordinary course of business, Turley took McSherry’s
case to Deputy District Attorney Ken Lamb, a prosecutor with
ten years of previous experience as a police officer. Lamb’s
declaration filed in support of the officers’ motion for sum-
mary judgment reads as follows:
DECLARATION OF DEPUTY DISTRICT ATTORNEY
KEN LAMB
I, Ken Lamb, declare and state as follows:
1. I am a Deputy District Attorney for the County of
Los Angeles, and I was the trial deputy in the case
of the People v. Leonard McSherry, Case No. A
040264.
2. Before I became a Deputy District Attorney, I
was a member of the Los Angeles Police Department
for ten years. During my career as a police officer
and as a district attorney, I have interviewed over a
thousand children, and have now been involved in
the investigation of sexual abuse crimes for over
eighteen years. I have conducted training seminars
MCSHERRY v. CITY OF LONG BEACH 14591
on sexual assault crimes, including techniques for
interviewing children. Throughout my career, I have
prosecuted over 600 felony jury trials.
3. I make this declaration in support of the Defen-
dant’s Motion for Summary Judgement. The facts set
forth herein are true of my own personal knowledge,
except for those things stated on information and
belief, which are believed to be true, and if called
upon to testify thereto, I could and would compe-
tently do so under oath.
4. Leonard McSherry (“McSherry”) was arrested
for the kidnap and rape of six year-old [ ] . . . on
May 17, 1988. On May 18, 1988, I authorized that
he be charged with (1) forcible rape; (2) oral copula-
tion of a person under age 14 and more than 10 years
younger; (3) rape by a foreign object; and (4) kid-
naping to commit child molestation of a victim under
the age of 14.
5. After McSherry’s arrest, I reviewed all of the
evidence, including the witnesses’ identifications,
the witnesses’ statements, the police officers’ state-
ments, the physical evidence, the criminal lab
results, and other corroborating evidence, to ensure
that there was a case against McSherry.
6. In addition, I reviewed the police reports, the
photo lineups, and the live lineups in order to ensure
their lawfulness.
7. Furthermore, I interviewed the witnesses in
order to verify the information provided to me by the
police officers.
8. I personally interviewed [the victim] on more
than one occasion. During the interviews, I was con-
14592 MCSHERRY v. CITY OF LONG BEACH
vinced by her demeanor and language that she was
describing what she remembered from her kidnap-
ing, rather than from any coaching or outside influ-
ence. Based upon my experience with child victims
of sexual assault, I further believed that her emo-
tional state was such that it would have been virtu-
ally impossible for anyone to have coached her on
what to say.
9. I personally interviewed . . ., [the victim’s] four
year-old brother. There were no indications that any-
one had coached him or otherwise inappropriately
attempted to influence him.
10. I personally interviewed the adult witnesses,
and clearly explained to them that they were to tes-
tify only to those things about which they had per-
sonal knowledge, and not about anything they might
have heard from other sources. Based upon my con-
versations with the adult witnesses, I believed that
they were recounting their personal experiences.
11. Based on my independent investigation, I con-
cluded the photo lineups and the live lineups were
not misleading or suggestive. I further concluded
that the testimony of the witnesses was of their own
recall, and not the result of influence by police offi-
cers.
I declare under penalty of perjury under the laws
of the United States of America that the foregoing is
true and correct.
Executed on March 27, 2006, in Los Angeles,
California.
SIGNED
Ken Lamb, Declarant
MCSHERRY v. CITY OF LONG BEACH 14593
The prosecutor’s assertions that he personally made the
decision to approve and to file a felony complaint against
McSherry and to prosecute the case, and that he did so based
solely upon his own independent investigation, were closely
tested by McSherry’s counsel in lengthy depositions. We have
scoured this record to uncover any facts or valid inferences
uncovered in those depositions or elsewhere that materially
undermine the credibility of Lamb’s assertions as to the inde-
pendence of his judgment and have found none. It is not
enough to demonstrate a genuine issue of material fact simply
to say, as McSherry has, “McSherry disputes Defendants’ fac-
tual premise that Lamb used independent judgment.” Sum-
mary judgment requires facts, not simply unsupported denials
or rank speculation. Poppell, 149 F.3d at 954. McSherry’s
statement of genuine issues in opposition to Defendants’
motion for summary judgment does no better. At most, the
facts relied upon by McSherry take issue with the thorough-
ness of Lamb’s investigation, not the convincing evidence
that it was entirely independent. Because this appeal is about
the facts in the record, we array them in detail greater than our
ordinary practice.
For example, McSherry’s counsel asked Lamb, “[t]he cir-
cumstances of the original identification by [the victim] . . .
as far as you know are based on what Turley said; isn’t that
right?” Lamb’s answer was, “No, I interviewed [the victim]
herself. I personally interviewed her.” Later, McSherry’s
counsel pressed the same point, asking Lamb, “So what you
know about that identification [of McSherry] is what has been
related to you by Mr. Turley; correct?” Answer, “No, that’s
not correct. I also know what’s been related to me [by the vic-
tim].”
Lamb elaborated about the victim’s initial identification of
McSherry in great detail:
Q (by counsel for McSherry) And what was it that
[the victim] said to you?
14594 MCSHERRY v. CITY OF LONG BEACH
A (by Ken Lamb) Throughout various interviews?
Q What do you remember about what she said to
you?
A That she referred to the individual who did
these acts as “the stranger.” She was unable to recall
sexual — a great deal about the sexual acts them-
selves. She remembers going to a house, that in the
bedroom there was a photograph of the stranger on
the wall, that she was dropped off and went up to
some other house, that — I think that would be her
initial sort of description about what happened.
Q Okay. Anything else that you remember?
A At some point we talked about the photographic
identification. Do you want me to go into that?
Q Yeah.
A Okay, I at some point — I don’t recall when —
I explained to her that she’s not in any trouble, that
no matter what she says, none of this is her fault.
Kids frequently think that somehow when they get
abused, when they get sexually assaulted, that they
did something wrong, that it’s their fault. I told her
you didn’t do anything wrong, it’s not your fault. I
told her that whatever she said, that as long as it was
the truth, it didn’t matter, she wasn’t going to get
into any trouble.
We would have had some conversation about —
to make sure that she understood what it meant to
tell the truth. In my mind — she was a child. When
I interview kids, I rate them on a one to ten scale. On
their ability to communicate her biggest problem
was that she could communicate about portions of
MCSHERRY v. CITY OF LONG BEACH 14595
things that had happened, but there were areas that
she was totally blank on. The best example I can
give of that is what I did in closing argument was I
broke up a record album. You might be young
enough that you don’t know a record album, but I
broke it and I held up pieces. She was — it was like
trying to put a record album back together. There
were pieces that you could hear, but then there
would be spots missing. She came across in that
way.
She was afraid. I told her that nothing was going
to happen to her, that if she didn’t remember some-
thing, it was okay. There were no wrong answers.
We talked about — I tried to get some information
about the stranger. She was really not very able to
give information other than stranger. I asked her if
she had seen photographs of which she said and that
the stranger was one of them. I told her if she was
guessing, that she didn’t have to guess. If there was
nobody there, she could say that. There was no
wrong answers.
And she told me that she identified the stranger,
that he was in a photographic line-up, that his picture
had been on the wall in the house. I think that’s the
extent of how the conversations would have gone. I
don’t believe that they got — as we progressed
through the conversations up to the trial, I don’t
believe that they got much more in detail things.
***
Q When you had a conversation with her about
what it meant to tell the truth, what did you say to
her?
A I asked here if she understood that it was
important that she tell the truth. She said yes, and I
14596 MCSHERRY v. CITY OF LONG BEACH
said — I held up a pen or something and I said if this
was a yellow pen and it was a black one (sic), would
that be the truth, and she said no, and I’m giving that
example. That’s not the — I’m not citing word for
word. I’m doing some sort of description like that,
some item. If I said it was a black pen it would be
the truth; yes. I said what do you think would happen
if you told me that it was not the truth, like the black
pen was yellow when it really wasn’t. She said she
would be in trouble, and I said do you understand
that if people tell you what to say, it doesn’t matter,
tell the truth. If someone else has told you what to
say in the past — one of the tests that I use — and
again, I don’t want to mislead you. This is general
things that I do. I can’t give you specific word for
word of what happened.
I give kids the example after they’re done talking
— I let them talk. I try not to give them suggestions
or say things to them. At some point I will then say,
well, what if your mother told me that, an example,
that you were in a bathtub and these things happened
to you. When kids tell me, oh, yeah, I remember
that, I’ll go into that conversation with them. That’s
not good. That tells me that they’re very easily influ-
enced and that they’re probably not going to be a
very good witness. Other kids who are on the other
end and say if mom told you that, she’s wrong, that’s
not what happened, I know that they’re going to be
a good witness, and we had conversations to that
type of extent because in my mind it’s important
kids understand they’re not going to be in trouble,
and that they don’t — there’s no one they have to
please I guess is the best way to put it.
***
A She was without any hesitation that the
stranger was in fact the person that she identified
MCSHERRY v. CITY OF LONG BEACH 14597
which I knew to be, now know to be, McSherry. She
was without any hesitation about the description of
the room. She was very — had extreme difficulties
in discussing the sex aspects of the crime. Those are
the areas that I know.
The victim herself corroborated in her deposition the offi-
cers’ and Lamb’s recitations of her multiple positive identifi-
cations of McSherry.
Q (by counsel for the Defense) Were you told that
you didn’t have to pick out anybody if the person
wasn’t there?
A (the victim) Yes.
Q Were you then shown the photographs?
A Yes.
Q Did you pick out somebody?
A Yes.
Q Okay. Now, as to that somebody, did you ulti-
mately pick that somebody out of the live line-up?
A Yes.
Q And did you ultimately identify that same
somebody in a courtroom at a trial in Long Beach?
A Yes.
Q Who was that somebody?
A Mr. McSherry.
14598 MCSHERRY v. CITY OF LONG BEACH
Q And is that the person that you picked out on
your own when you were first shown the photo-
graphs?
A Yes.
Q And was that the same person you identified in
the courtroom?
A Yes.
Q And were you being honest at the time on all
three occasions?
A At the time, yeah.
Q When you picked out the photograph of
McSherry, did you honestly believe it was McSherry
who had done this to you?
A Can you say that again.
Q Yeah. When you first picked out the picture of
McSherry at a hospital, did you believe at that time
McSherry was the individual who had done this to
you?
[objection by counsel]
A Yes.
Q Your answer is yes?
A Yes.
Q When you told them at the live line-up whether
it was in the room or just outside the room that it was
McSherry, was that a truthful statement?
MCSHERRY v. CITY OF LONG BEACH 14599
[objection by counsel]
A Yes.
Q Yes?
A Yes.
Q And when you identified him in court, was that
a truthful statement?
A Yes.
Q And the “him” you identified in court was who?
A McSherry.
As for Lamb’s acceptance at face value of the police reports,
he said this:
Q (by counsel for McSherry) And the evidence
that you have is the evidence that’s given to you by
the police officers in the case; correct?
A (by Ken Lamb) No, because I interview wit-
nesses. It’s coming directly from the witnesses.
***
McSherry’s counsel probed Lamb during his deposition for
evidence of bias against a suspect in a sexual assault case. He
found none.
Q (by counsel for McSherry) And is the ultimate
goal to obtain a conviction within those parameters?
A (by Ken Lamb) No.
14600 MCSHERRY v. CITY OF LONG BEACH
Q What is the ultimate goal?
A Is to examine the evidence in a fair and equita-
ble manner. It’s no — it’s just as good if somebody
who is accused of a crime you determine isn’t guilty
than it is that if you have the evidence and you con-
vict somebody. I don’t believe a prosecutor or dep-
uty district attorney’s role is ever as if it’s a game
and you have to win. You win — if it turns out
somebody is innocent, you win. If it turns out some-
body is guilty, then that’s an appropriate win, too.
Q That’s a pretty good job, you win no matter
what.
A That’s why I like it.
We also find it noteworthy that McSherry was offered a
DNA test by the prosecution before trial, and he declined, pre-
ferring instead to go to trial without delay. Lamb testified that
he was willing to waive time to allow the DNA test to be per-
formed, but that McSherry was not.
At the core of McSherry’s substantive constitutional claims
as well as his rejoinder to the issue of causation is the asser-
tion that the officers’ allegedly improper conduct materially
influenced the prosecutor’s decision to file charges against
him and to pursue a conviction. In this regard, McSherry
relies in large measure on (1) a discrepancy between the vic-
tim’s initial description of her attacker and McSherry, (2)
allegedly flawed identification procedures used by Turley,
and (3) what Turley said about the victim’s incriminating
description of the interior of the house where she was
assaulted, which was at odds with the facts as well as denied
by the victim 14 years later. McSherry argues specifically that
“Lamb’s ‘independent investigation’ was tainted by Defen-
dant’s fabricated evidence and unconstitutionally suggestive
interview procedures and techniques.” This, of course, could
MCSHERRY v. CITY OF LONG BEACH 14601
be a valid claim — if McSherry had facts to back it up. See
Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988);
Barlow v. Ground, 943 F.2d 1132, 1136-1137 (9th Cir. 1991).
We recognize that McSherry presented evidence to support
one of his contentions, notably that one of the police officers
may have fabricated evidence against him. In support of that
claim, McSherry pointed 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)
albeit fourteen years after she was kidnaped, the victim denied
giving 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.
[10] But McSherry’s presentation fell short and failed to
raise a genuine issue of material fact as to whether the alleged
fabrication or any misconduct by Defendants caused his
arrest, prosecution, and conviction. As described above, there
was probable cause to justify McSherry’s arrest and prosecu-
tion. In addition, even examining the evidence in the light
most favorable to McSherry, the evidence presented before
the district court was simply insufficient to sustain a finding
that Lamb’s investigation and decision making was not inde-
pendent and was tainted by the alleged fabrication of evi-
dence. Again, we refer to Lamb’s lengthy deposition where he
was repeatedly challenged on these issues.
14602 MCSHERRY v. CITY OF LONG BEACH
Q (by counsel for McSherry) Do you remember
anything else other than what you’ve told us about
your independent conversation with [the victim]?
A (by Ken Lamb) I may have mentioned it
already, I don’t know, but my telling her it was
important to tell the truth. Part of the interviewing of
her was to evaluate whether or not she was a compe-
tent witness and could actually communicate and
testify, so I was looking for that, and the only other
thing would be looking to see other things that she
was saying that were issues that I call red flags I
would have had to address or deal with.
Q Do you remember anything else?
A No.
Q You stated here, “The evidence is reviewed to
ensure that there is not a bias or unfair inference
placed upon witnesses.” What do you mean by that?
A When I’m looking at a case, I’m trying to do a
couple of things. Obviously if there’s evidence that
shows that somebody didn’t commit the crime, I
don’t want that evidence to be ignored, and second,
I need to make sure that we have evidence that will
stand up in court, a jury will hear it and say, yes,
beyond a reasonable doubt I believe this person com-
mitted this crime. In order to do that I try to think
and look for things that a defense attorney represent-
ing somebody will argue. Whether they’re, one, mer-
itorious or have any value doesn’t mean, with all
respect to the defense attorneys, that they’re not
going to still argue it, so if there’s something that
even if it’s not there — example, if a police officer
says I saw this person drop a gun, there may be no
evidence that that officer is lying, but the defense is
MCSHERRY v. CITY OF LONG BEACH 14603
going to argue how can you trust the police officer’s
testimony, so you have to be alert for those things,
and in evaluating a case I’m looking to see if there’s
any indications or evidence that a defense attorney is
going to raise questions about. In this case there was
a huge red flag immediately, and that was how Mr.
McSherry’s photograph was identified.
Q When you say “The evidence is reviewed,” are
you saying that this is what you did with respect to
Mr. McSherry’s case?
A Correct.
Q And when you say, “The evidence is reviewed,”
what evidence are you talking about? Are you talk-
ing about the police reports that are presented to you
by the police department?
A No, I’m talking about all of the — let’s make
sure we’re talking about a time frame here. Back
then I’m talking about statements by witnesses,
physical evidence that you have, statements by
police officers, any evidence that’s going to be pre-
sented in court.
Q And when you look at this evidence are you
looking at the formal police reports, are you looking
at the officers’ notes, what are you looking at?
A I’m looking at whatever I have which would be
police reports, statements of witnesses, interviews
with witnesses or victims, physical evidence, testing
of physical evidence and results of that, whatever
evidence I have that could find its way into court.
Q And the evidence that you have is the evidence
that’s given to you by the police investigators in the
case; correct?
14604 MCSHERRY v. CITY OF LONG BEACH
A No, because when I interview witnesses, it’s
coming directly from the witnesses.
Q Other than your own independent investigation?
A No, because it could come from crime lab peo-
ple, not police officers.
Q Other than that? Whatever investigations the
police officers have done and they present it to you
—
A Right.
Q — do you independently search for any docu-
ments relating to that investigation that they’ve done,
or do you rely on the documents that they give to
you?
A I’m sorry, I don’t understand the distinction
you’re trying to make.
Q Okay. Let’s say I’m an investigator on [this]
case.
A Right.
Q And I go to you and I say here, Mr. Lamb, I
want the charges filed and here are the reports on
this case, and I give you the reports in this case. You
then review those reports and you make a determina-
tion. Do you then say, well, do you have anything
else in connection with this case, do you have any
notes, do you have any other reports, do you have
something else that you haven’t given me?
A Yes, and frequently —
MCSHERRY v. CITY OF LONG BEACH 14605
Q Did you do that in this case?
A Yes, and frequently direct them to do other
things.
Q And were you given what to your satisfaction
was all the reports that they had in connection with
the McSherry case?
A Yes.
Q Were you given all their handwritten notes to
your satisfaction?
A At some point, yes.
Q And did you review all those?
A Yes.
Q Now you say here, “The photo line-ups and live
line-ups were not misleading or suggestive.” What
photo line-ups are you talking about?
A The photo that I refer to as the six-pack of
McSherry.
Q Any other photo line-ups?
A There were — I believe there were some photo
line-ups of the vehicle, and possibly — well, I’m not
positive there were any of the house. I think it was
just the vehicle.
Q And what did you do to determine that the
photo — let’s talk about them in terms of show-ups
— that the photo show-ups of the individuals were
not suggestive?
14606 MCSHERRY v. CITY OF LONG BEACH
A I looked at the photo line-ups.
Q And?
A They weren’t suggestive.
Q And what criteria did you use to determine that
they weren’t suggestive?
A Well, for example, if you’re trying to identify
or eliminate an African-American and you put his
photo in with five male Caucasians, that’s the argu-
ment and there’s a distinction here again. Now we’re
talking about what will happen in a trial versus the
reality aspect. The argument is that’s going to be
highly suggestive. I’m not commenting on whether
that’s true or not true, but that’s the argument.
Q I’m sorry to interrupt you. Maybe you didn’t
understand my question. My question is not a gen-
eral question. My question is with respect to the six-
pack in this case, in the McSherry case, what criteria
did you use to determine that that six-pack was not
suggestive?
A That’s what I’m explaining. I looked at the pho-
tographs and made sure that if you were showing
somebody these photographs without any knowledge
of who they were supposed to be looking for, would
anybody be picking a specific photograph for what-
ever reasons. Did the officers tell me or write any-
thing that suggested in any way that the
photographic line-up could be questioned. For exam-
ple, if someone showed me your photograph by itself
and they said is this the person who was asking you
questions in the deposition, well, the answer would
be yes, but there still could be the argument of, see,
that was suggestive because they only showed one
MCSHERRY v. CITY OF LONG BEACH 14607
photograph. Doesn’t change that it’s actually the
truth, but that argument could exist, so that’s what I
mean by looking at the photographs and determining
that.
Q But that didn’t exist in this case because there
were six photographs.
A Correct.
Q So we’re not dealing with a single photograph
being shown.
A I understand.
Q What was it about this particular six-pack that
lead you to believe that it was not suggestive in any
way?
A I didn’t see — if you didn’t know that
McSherry was involved in a case, I didn’t see any
photographs that if you showed it to general people
the consensus would be they would be picking the
same photograph because something stood out in
that photograph, nor did I have any information to
lead me to believe that contrary to — let’s assume
you get past that stage, that the photographs are
okay, that something else was occurring that made
people pick the same photograph.
Q What was the description that the witnesses
gave of the individual who had kidnapped [the vic-
tim]?
A I don’t know exactly. I am aware that it was not
fitting of McSherry.
14608 MCSHERRY v. CITY OF LONG BEACH
Q In your conversations with [the victim], were
you aware of the description that she had given of
the individual?
A Yes.
Q And were you aware that it didn’t fit Mr.
McSherry?
A Yes.
Q And did you talk to [the victim] about the dif-
ference between that description and her identifica-
tion of Mr. McSherry?
A I wouldn’t say it that way because it would be
too suggestive. I would say it more on when you
looked at the photographs, are you certain that the
person you picked was the stranger.
Q My question was did you talk to [the victim] at
all about her initial description of the individual?
A No.
[Break in the deposition]
Q Mr. Lamb, we were talking before the lunch
break about Exhibit 1022 which is your Rule 26
report, and in there you state if you look at the para-
graph that says “Information relied upon by the
Expert,” the last sentence you say, “The testimony of
witnesses was cross-checked with other information
to ensure that there was corroboration.” What other
information are you referring to?
A Witnesses corroborate other witnesses, events
that were corroborated by — for example, [the vic-
MCSHERRY v. CITY OF LONG BEACH 14609
tim’s] description of the house. There was a house
that had a room with that description. Things like
that.
Q Anything else that you mean by that?
A Other than evidence corroborating evidence and
witnesses, no.
Q When you say “corroboration,” are you talking
about whether the testimony of the witnesses corrob-
orated each other?
A Sure, that’s one way of corroboration.
Q What other — other than that, other than testi-
mony corroborating, what other aspects of corrobo-
ration did you mean to include with the word
“information”?
A When [the victim’s] description of a room
where these events took place meets a description of
a room that’s found that fits that description, that’s
corroboration of her testimony.
Q Did you ever talk to [the victim] about the origi-
nal description that she had given about the place
where she had been taken and raped?
A No. What I would ask her is what can you tell
me about the place. Now if that’s asking her about
her original description, that would be, I guess, a
yes, but I wouldn’t tell her details, if that’s what
you’re asking. I’m not sure.
Q Well, you were aware that she had originally
given a description of the place to where she had
been taken; correct?
14610 MCSHERRY v. CITY OF LONG BEACH
A Correct.
Q You were aware of that description; correct?
A Correct.
Q Did you ever ask her anything about that origi-
nal description that she gave?
A If there were issues that were contradictory, I
may have very well asked her about it without giving
her — letting her give me the information first, and
then saying could it have been this or this instead, or
do you recall saying something like this to somebody
else.
Q Did you feel that there were any, as you say,
issues that were contradictory?
A Yes, I believe there were description contradic-
tions, but not that she was giving to me, if that’s
what you’re asking.
Q Well, I’m not sure I understand your question.
You say that you believe that there were description
contradictions?
A I believe that from the initial reports the
description of the suspect and the description of the
location would be somewhat contradictory to what
she was now telling me.
Q And my question is did you attempt to resolve
those contradictions by asking her questions con-
cerning the contradictions?
A Yes.
MCSHERRY v. CITY OF LONG BEACH 14611
Q And what did you ask her?
A I don’t recall.
Q How were the contradictions resolved in your
own mind?
A From talking to [the victim], the information
that she was telling me I believed over things that
were in the reports.
Q Are you saying you did not believe that she had
originally given the description contained in the
reports?
A No, I’m saying that whether she gave them then
or didn’t give them, I didn’t believe that they were
accurate.
Q Why?
A Because I’m talking to [the victim] and she’s
telling me information.
Q Any other reason other than that?
A Well, the information that she’s telling me is
then corroborated by other information.
Q Which is what?
A Robin Davis, her brother, the location, the
description of the location.
*..
Q Did you personally attempt to establish the
veracity or credibility of any of the reports that were
prepared by police officers?
14612 MCSHERRY v. CITY OF LONG BEACH
A Yes.
Q How did you do that?
A By personally interviewing the witnesses
myself.
Q In interviewing the witnesses yourself was your
purpose to try to determine the veracity of the police
reports?
A I would phrase it differently because it seems to
imply that I had some question about the veracity. I
had nothing that lead me to believe that there was a
problem other than I had to focus on the photo line-
up because of how — the uniqueness of it, because
of the way the person was selected, being a filler, not
having a reason why he was in the line-up, but I
would have been examining those areas so that they
would not have been trial issue areas.
Q When you say “so that they would not have
been trial issue areas,” what do you mean?
A Well, I want to make sure that when a witness
is on the stand and I say thinking back to that day
and that time and looking at the defendant here, are
you absolutely certain it’s that defendant, that their
answer is yes and that they weren’t influenced by
anybody to say yes, and that on the stand they’re not
going to be telling me things that I should have
known before they were testifying. ‡. .
(emphases added).
[11] Against this record, McSherry has put forward insuffi-
cient facts and evidence to proceed past summary judgment.
The record is devoid of any information, facts, or valid infer-
MCSHERRY v. CITY OF LONG BEACH 14613
ences that might undermine the prosecutor’s testimony. In
fact, the evidence — including the victim’s continuing affir-
mation of her identification of McSherry as her attacker —
supports Lamb’s deposition testimony. Accordingly, this case
is particularly distinguishable from Borunda and Barlow
where the prosecutors relied only on police reports in making
their decision to file charges. See Borunda, 885 F.2d at 1390;
Barlow, 943 F.2d at 1136-37. In the words of Anderson v.
Liberty Lobby, Inc., 477 U.S. at 252, this case is manifestly
so “one-sided” that it need not be submitted to a jury.
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).2
3. Monell claims
[12] Because McSherry has no case against the officers,
and because he tenders no facts other than their alleged per-
sonal misdeeds as evidence of a policy statement, ordinance,
regulation, decision, custom, usage, or practice of either the
City of Long Beach or the Long Beach Police Department
that caused his injury, see Poppell, 149 F.3d at 970-71, his
Monell claim also fails as a matter of law. City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If a person
has suffered no constitutional injury at the hands of the indi-
vidual police officer, the fact that the departmental regulations
2
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.” Id. In Harris,
unlike the case at bar, there were no other complaining witnesses, only the
officers. Here, the victim served as the complaining witness.
14614 MCSHERRY v. CITY OF LONG BEACH
might have authorized the use of constitutionally excessive
force is quite beside the point.”); Scott v. Henrich, 39 F.3d
912, 916 (9th Cir. 1994) (“While the liability of municipali-
ties doesn’t turn on the liability of individual officers, it is
contingent on a violation of constitutional rights.”); Jackson
v. City of Bremerton, 268 F.3d 646, 653-654 (9th Cir. 2001)
(“Neither a municipality nor a supervisor . . . can be held lia-
ble under § 1983 where no injury or constitutional violation
has occurred.”). This case is distinguishable from cases such
as Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994), where
the City of Los Angeles maintained an explicit policy involv-
ing the use of biting police dogs, one of which allegedly
inflicted excessive force upon the plaintiff.
AFFIRMED.