Devereaux v. Abbey , 263 F.3d 1070 ( 2001 )

Opinion by Judge TASHIMA; Concurrence by Judge FERNANDEZ; Partial Concurrence and Partial Dissent by Judge KLEINFELD.

TASHIMA, Circuit Judge:

Plaintiff Robert Devereaux brought suit in federal district court for alleged violations of his federal civil rights, and also on various state law grounds. The district court granted summary judgment in favor of all defendants as to the federal claims and then declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice. This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

This case arises out of the investigation and prosecution of Devereaux for alleged sexual abuse of foster children living in his home, an investigation that mushroomed into a sexual abuse “witch hunt” in which 43 adults were charged with over 29,000 counts of sexual molestation. We summarize the pertinent facts only briefly. The facts are set forth in detail in the three-judge panel opinion. See Devereaux v. Perez, 218 F.3d 1045, 1047-51 (9th Cir.), reh’g en banc granted, 235 F.3d 1206 (9th Cir.2000) (“Devereaux I ”).

On August 3, 1994, Detective Robert Ricardo Perez of the Wenatchee, Washington, Police Department interviewed A.R., a foster child of Devereaux’s, to determine whether A.R. was being sexually abused by Devereaux. A.R. initially denied that she was being abused but, upon further questioning, went on to tell Perez that she had been both a victim of and a witness to sexual abuse by Devereaux. On this basis, Perez brought Devereaux to the police station for questioning. Perez interviewed Devereaux about the alleged abuse, and Devereaux denied that he had sexually abused any of his foster children.

While Perez was interviewing Dever-eaux, Defendant-Appellee Linda Wood, an employee of the Washington Department of Social and Health Services (“DSHS”), arrived at the police station with A.S., another of Devereaux’s foster children. Perez briefly interrupted his interview with Devereaux to talk to A.S., who denied that there was any sexual abuse taking place in the Devereaux home. Perez then finished his interview with Devereaux and had him booked on one count of rape of a child in the third degree, on the basis of the alleged abuse of A.R.

Later on the same day, Perez also interviewed two more of Devereaux’s foster children and, with Wood, conducted a lengthy second interview of A.S. This interview lasted from 5:00 p.m. to 11 p.m. In it, A.S. repeatedly denied having been sexually abused by Devereaux. After six hours of questioning, however, she finally changed her story and said that he had abused her. Perez then had Devereaux booked for the rape and molestation of A.S.

From there the investigation grew and the accusations spread. Roughly one year later, the felony charges against Dever-eaux were dropped in exchange for his plea of guilty to two misdemeanor counts — one count of rendering criminal assistance and one count of fourth-degree assault (for having spanked one of his foster children). The conditions of his sentence prohibited him from having contact with certain children, from being a foster parent for two years, and from being employed in a field that caters to or has regular contact with minor children.

Devereaux then commenced this action under 42 U.S.C. § 1983, naming the following parties as defendants: Perez; Wood; DSHS; the City of Wenatchee; Timothy David Abbey, Laurie Alexander, and Kate Carrow, all of whom were employees of DSHS; Kenneth Badgley, in his official capacity as police chief for the Wenatchee Police Department; and Earl Tilly, the Wenatchee Public Safety Commissioner. Devereaux alleged violations of his federal rights and also brought several state law claims.

The defendants moved for summary judgment on the § 1983 claim, and the district court granted their motions. It declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice to their being prosecuted in state court. See 28 U.S.C. § 1367(c). This timely appeal followed. A divided panel of this court affirmed the district court. See Devereaux I, 218 F.3d at 1045. We subsequently granted rehearing en banc. 235 F.3d at 1206.

Pursuant to a settlement agreement, Devereaux’s appeal with respect to Perez and Badgley was dismissed with prejudice. In addition, Devereaux has not challenged the dismissal of the state law claims or the grant of summary judgment in favor of the City of Wenatchee, DSHS, or Tilly.

Consequently, the only matter now before this court is Devereaux’s challenge to the grant of summary judgment in favor of Abbey, Alexander, Carrow, and Wood (hereinafter “Defendants”) on the § 1983 claim. The district court granted summary judgment to Defendants on that claim on the basis of qualified immunity, stating that Devereaux has “not cite[d], nor has this Court’s research revealed, case law to suggest that any of the State Defendants violated Plaintiffs clearly established rights based upon the evidence in the record.”

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Werner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

III. DISCUSSION

Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights. 42 U.S.C. § 1983. Qualified immunity, however, shields § 1983 defendants “[f]rom liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court clarified the two-step qualified immunity inquiry. To decide whether a defendant is protected by qualified immunity, a court must first determine whether, “[tjaken in the light most favorable to the party asserting injury, ... the facts alleged show the officer’s conduct violated a constitutional right.” Id. at 2156. If the plaintiffs factual allegations do add up to a violation of the plaintiffs federal rights, then the court must proceed to determine whether the right was “clearly established,” i.e., whether the contours of the right were already delineated with sufficient clarity to make a reasonable officer in the defendant’s circumstances aware that what he was doing violated the right. Id. In essence, at the first step, the inquiry is whether the facts alleged constitute a violation of the plaintiffs rights. If they do, then, at the second step, the question is whether the defendant could nonetheless have reasonably but erroneously believed that his or her conduct did not violate the plaintiffs rights. See id. at 2158 (“The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct.”).

Undertaking the first step of the two-step qualified immunity inquiry, we are persuaded that there is a 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. Perhaps because the proposition is virtually self-evident, we are not aware of any prior cases that have expressly recognized this specific right, but that does not mean that there is no such right. Rather, what is required is that government officials have “fair and clear* warning” that their conduct is unlawful. See United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (noting that “general statements of the law are not inherently incapable of giving fair and clear warning,” and that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful’ ” (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (alteration in original)); see also Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir.2001) (“Precedent directly on point is not necessary to demonstrate that a right is clearly established. Rather, if the unlawfulness is apparent in light of preexisting law, then the standard is met. In addition, even if there is no closely analogous case law, a right can be clearly established on the basis of common sense.” (emendations, internal quotation marks, and citations omitted)).

Under Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942), the knowing use by the prosecution of perjured testimony in order to secure a criminal conviction violates the Constitution. While Pyle does not deal specifically with the bringing of criminal charges, as opposed to the securing of a conviction, we find that the wrongfulness of charging someone on the basis of deliberately fabricated evidence is sufficiently obvious, and Pyle is sufficiently analogous, that the right to be free from such charges is a constitutional right.

We are also persuaded, however, that there is no constitutional due process right to have child witnesses in a child sexual abuse investigation interviewed in a particular manner, or to have the investigation carried out in a particular way. Interviewers of child witnesses of suspected sexual abuse 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-constitutional, decisional, or statutory— that indicates precisely where the line must be drawn. See generally Myers v. Morris, 810 F.2d 1437, 1460-61 (8th Cir.1987) (discussing in detail this “grey area of investigative procedure as to which there were, and probably still are, less than clearly established legal norms”). Cf. Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (noting, in a Confrontation Clause context, that “[ajlthough the procedural guidelines propounded by the court below may well enhance the reliability of out-of-court statements of children regarding sexual abuse, we decline to read into the Confrontation Clause a preconceived and artificial litmus test for the procedural propriety of professional interviews in which children make hearsay statements against a defendant”). Consequently, mere allegations that Defendants used interviewing techniques that were in some sense improper, or that violated state regulations, without more, cannot serve as the basis for .a claim under § 1983.

Given this legal background, the central issues presented on this appeal are the following: (1) Did Devereaux properly present to the district court and to this court a deliberate fabrication-of-evidence claim, or merely an improper-interview-techniques claim? (2) If the former, has Devereaux adduced sufficient evidence in support of such a claim to withstand summary judgment?

For the reasons given below, we conclude that, to the extent that Devereaux has raised a deliberate-fabrication-of-evidence claim, he has not adduced or pointed to any evidence in the record that supports it. For purposes of our analysis, we assume that, in order to support such a claim, Devereaux must, at a minimum, point to evidence that supports at least one of the following two propositions: (1) Defendants continued their investigation of Devereaux despite the fact that they knew or should have known that he was innocent; or (2) Defendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information. See Devereaux I, 218 F.3d at 1063 (Kleinfeld, J., dissenting) (describing the “critical element” in Devereaux’s deliberate-fabrication-of-evidence claim, namely, “that the defendants who questioned the children knew or should have known that they were eliciting false accusations”); see also Myers, 810 F.2d at 1458 (requiring, in an analogous context, “a specific affirmative showing of dishonesty”).

A. Devereaux’s Arguments Before the District Court

The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the nonmoving party has the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548; see also Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000) (holding that the Celotex “showing” can be made by “pointing out through argument — the absence of evidence to support plaintiffs claim”). Once the moving party carries its initial burden, the adverse party “may not rest upon the mere allegations or denials of the adverse party’s pleading,” but must provide affidavits or other sources of evidence that “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1107 (9th Cir.2000) (holding that once the moving party carries its initial burden of production, “the nonmoving parties were obligated to produce evidence in response”).

In their memorandum in support of their motion for summary judgment, Defendants argued that “there is no evidence that any of the defendants] actually believed plaintiff was innocent or that the children were lying when they participated in the interviews.” On this basis (among others), Defendants argued that they were entitled to summary judgment.

In his memorandum in opposition to Defendants’ motion for summary judgment, Devereaux never expressly accepted or rejected the proposition that his § 1983 claim required a showing of dishonesty, and he never purported to have made such a showing. Most of his memorandum indicated that Devereaux was raising only an improper-interview-techniques claim. For example, he asserted that Defendants failed “to adhere to established guidelines and policies concerning the questioning of child witnesses,” and that they departed “from accepted professional judgment, practice, and standards.” He also claimed that “[w]hat is at issue for this action is the failure of the State Defendants to conduct and monitor these interrogations in a manner that would ensure the veracity of the information obtained.” All of those allegations, even if supported by record evidence, are insufficient to support a deliberate-fabrication-of-evidence claim. Failing to follow guidelines or to carry out an investigation in a manner that will ensure an error-free result is one thing; intentionally fabricating false evidence is quite another.

Devereaux did, however, go on to claim that Defendants’ “intentional attempt to alter the testimony of alleged child victims” was also “at issue.” He did not, however, expressly develop that “issue” or connect it with other, more specific factual allegations, or with any record evidence. His “Statement of Material Facts” in opposition to Defendants’ motion for summary judgment contains several descriptions of interviews of children in which the children initially denied abuse, were questioned further, and ultimately accused Devereaux of abusing them. These, as far as we can discern, are the only “attempts to alter the testimony of alleged child victims” to which Devereaux referred.

The problem with Devereaux’s line of argument is that, as we noted earlier, interviewers of child witnesses of suspected sexual abuse must be permitted to exercise some discretion in deciding when to accept initial denials at face value and when to reject them (or withhold judgment on them) and proceed further. Consequently, an allegation that an interviewer disbelieved an initial denial and continued with aggressive questioning of the child cannot, without more, support a deliberate-fabrication-of-evidence claim, even if the allegation is amply supported by the evidence. What is required is an allegation or a showing that the interviewer knew or should have known that the alleged perpetrator was innocent, or that the interview techniques employed were so coercive and abusive that the interviewer knew or should have known that they would yield false information. Devereaux never even alleged facts of this sort, much less supported such allegations with citations to evidence in the record.

An example will illustrate the point. In his memorandum submitted to the district court, Devereaux emphasized the fact that in the August 3 interview of A.S., in which A.S. initially denied being a victim of abuse but later changed her story and accused Devereaux, Wood repeatedly admonished A.S. to tell the truth. It is difficult to see, however, how repeated admonitions to be truthful can amount to a constitutional violation for deliberate fabrication of evidence, in the absence of any independent allegations or evidence that Wood knew or should have known that Devereaux was innocent and that A.S., in testifying to that effect, had already told the truth. Because Devereaux never made that independent argument, his complaints about Wood’s admonitions to the child to tell the truth cannot support a deliberate-fabrication claim. For similar reasons, the other incidents that Devereaux described before the district court also are inadequate to support such a claim.

Thus, to the extent that Devereaux’s memorandum in opposition to Defendants’ motion for summary judgment did raise a deliberate-fabrication-of-evidence claim, he failed to make or support any factual allegations that were logically capable of supporting such a claim. The district court’s decision to grant the motion was therefore proper.

B. Devereaux’s Opening Brief

“It is well-established that an appellate court will not consider issues that were not properly raised before the district court.” Slaven v. American Trading Transp. Co., 146 F.3d 1066, 1069 (9th Cir.1998). Although our discussion above demonstrates that Devereaux barely presented and never supported his deliberate-fabrication-of-evidence claim before the district court, we nonetheless discuss the additional arguments that he has raised on appeal. As that discussion shows, his failure to allege and to offer proof of the requisite facts continues.

In his opening brief on appeal, Dever-eaux generally argues only that Defendants used improper methods in interviewing witnesses. He never argues that they pursued their investigation of him even though they knew or should have known that he was innocent. The closest that he comes to making such an argument is a vague reference to “evidence that the state defendants ... held an animus and preconception against Devereaux which led to their intentional manipulation of child witnesses.” But the “animus and preconception” referred to could just as well be Defendants’ good-faith belief that Dever-eaux was guilty, which could lead to aggressive or manipulative questioning of the child witnesses in order to get them to testify truthfully, if reluctantly, to his guilt. We conclude that if Devereaux’s brief is intended to raise a deliberate-fabrication-of-evidence claim, it is not based on any allegation that Defendants knew or should have known that he was innocent.¹

Thus, if there is a deliberate-fabrication-of-evidenee argument in Devereaux’s opening brief on appeal, then it must be based on a claim that Defendants’ interviewing techniques were so coercive and abusive that Defendants knew or should have known that the interviews would yield false information. Liberally construed, Devereaux’s brief does raise this argument: It includes a discussion of Pyle, and it makes repeated reference to “coerc[ion] or influence[ ] to provide false testimony,” and the like.

The problem once again, however, is that the improprieties Devereaux describes cannot possibly support his claim. The alleged improprieties are well described and addressed in the panel opinion. See Devereaux I, 218 F.3d at 1054-55. For example, Devereaux repeatedly focuses on the interview in which Perez, in Carrow’s presence, confronted A.R. regarding her prior recantation of her allegations of abuse and threatened her with charges for “false reporting” if she stuck to her recantation. Devereaux emphasizes the fact that A.R. suffers from fetal alcohol syndrome and is therefore a particularly vulnerable witness. What Devereaux mentions only in passing is that, despite the coercive nature of the threat and despite A.R.’s heightened susceptibility, Añ. stuck to her recantation — Devereaux expressly recognizes that Perez “unsuccessfully applied pressure upon A.R.” by threatening “to prosecute her for perjury.” (Emphasis added.) Because this coercive technique did not, on Devereaux’s theory of the facts, yield any false testimony even though it was applied to an especially vulnerable witness, it can hardly serve as a basis for a claim that Defendants violated Devereaux’s rights by using techniques that they knew or should have known would yield false information.

We conclude that to the extent that Dev-ereaux has raised a deliberate-fabrication-of-evidence claim in his opening brief, he has again failed to allege facts that would support such a claim. The grant of summary judgment in favor of Defendants must therefore be affirmed.

C. Devereaux's Supplemental Brief

When we granted rehearing en banc, we ordered supplemental briefing from the parties. As a general matter, "[w]e review only issues which are argued specifically and distinctly in a party's opening brief," Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994), and an issue will therefore be deemed waived if it is raised for the first time in a supplemental brief, Kreisner v. City of San Diego, 1 F.3d 775, 778 n. 2 (9th Cir.1993). Despite these well-established principles and the fact that Devereaux's opening brief did not contain any meritorious arguments for reversal, we briefly address the arguments in his supplemental brief.

In his supplemental brief, Devereaux sensibly adopts the deliberate-fabrication-of-evidence argument that was so forcefully developed by Judge Kleinfeld in his dissent from the panel majority's opinion. See Devereaux I, 218 F.3d at 1057-63 (me-infeld, J., dissenting). Nonetheless, Devereaux still fails to allege any facts or point to any evidence in the record that supports the argument.

For example, Devereaux points out that Carrow was involved in the "parade of homes," an incident in which one of Devereaux's foster children was driven around Wenatchee and asked to point out the locations at which abuse had occurred. But driving a child around the community and asking where the crimes that the child allegedly witnessed took place is surely not such a coercive and abusive technique that Carrow should have known it would lead to false information. Devereaux points out that Carrow "ignored" another child's denials that Devereaux was abusing his foster children, but, again, interviewers of child witnesses of suspected sexual abuse surely must be given some latitude in determining when to credit witnesses' denials and when to discount them-the mere fact that an interviewer did not immediately believe such a denial cannot suffice to show that the interviewer violated the Constitution by using techniques that the interviewer knew or should have known would yield false information.

Devereaux also accuses Carrow of withholding exculpatory evidence, but (1) he does not argue that the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), apply to social workers at the investigative and charging stages, and (2) in any event, a Brady violation cannot in itself support a deliberate-fabrication-of-evidence claim-if it did, then any prisoner with a successful Brady claim would be able to bring a § 1983 action against the prosecutor for deliberate fabrication of evidence, and would be able to get past summary judgment. The other accusations against Carrow are even less substantial than these.

Devereaux's only accusation regarding Wood is her participation in the "tell the truth" interview of A.5., which we have already addressed.

Devereaux points out that Alexander participated in the "parade of homes" as well, that she withheld exculpatory information, and that she used Linda Miller's confession in questioning Miller's daughter. None of this shows, however, that Alexander knew or should have known that Devereaux was innocent, and none of it amounts to the use of investigative techniques that were so coercive and abusive that Alexander knew or should have known that they would yield false information.

The only accusation that Devereaux levels against Abbey is that he participated in Perez's interview of D.E. after D.E. had been in Perez's foster care for six months. Without more, that does not show that Abbey knew or should have known that Devereaux was innocent, or that he used techniques that he knew or should have known would yield false information.

Again, Devereaux has not alleged that Defendants knew or should have known that he was innocent, or that their investigative techniques were so coercive and abusive that they knew or should have known that the techniques would yield false information. He has therefore failed, even in his supplemental brief, to support a claim that Defendants deliberately fabricated evidence to be used against him.

D. The Partial Dissent

The partial dissent agrees that in order to support a deliberate-fabrication claim, Devereaux must show more than “that an interviewer disbelieved an initial denial and continued with aggressive questioning.” Kleinfeld, J., dissenting in part at 1084 (“partial dissent”). The partial dissent’s analysis of the evidence, however, is inconsistent with that requirement.

As part of its case against Wood, the partial dissent describes deposition testimony from A.S.’s mental health counselor to the effect that A.S. had threatened, on numerous occasions, to accuse the counsel- or of abusing her. Id. at 1085. The partial dissent fails to acknowledge, however, that the deponent was asked whether A.S. appeared to be capable of carrying out such a threat, but that the answer to that question was not included in the deposition excerpt that was provided to the district court and to this court. Most importantly, there is no evidence that Wood was aware of any of this, or even that the deponent had ever told anyone, let alone Wood, about any of AS.’s threats. For all we know, the deponent never took the threats seriously enough to think them worth reporting.

The partial dissent also states that “in a later interview” A.S. both accused another social worker of participating in the alleged orgies and admitted having made false accusations of rape. The partial dissent concludes that “[a] reasonable interviewer would have to be very wary indeed of accusations of sexual misconduct by this dangerous girl.” Id. at 1085. The “later interview” in question was conducted by Devereaux’s attorney and took place on June 26, 1995, nearly one year after Wood’s allegedly improper interview of A.S., and approximately four months after Devereaux filed his complaint. The partial dissent fails to explain how A.S.’s statements in June 1995 should have made Wood aware in August 1994 of A.S.’s supposed “dangerousness.”²

Apart from these unsupported or irrelevant allegations, the case against Wood comes to this: (1) A.S. initially did not accuse Devereaux, (2) she was subsequently left alone with Wood, and then, (3) after a lengthy interrogation by Wood and Perez, she accused Devereaux. The partial dissent notes that Devereaux, as the non-moving party, is entitled to all reasonable inferences in his favor. It then concludes that a jury could infer that “Wood knew the story was false.” Id. at 1086.

There are several problems with this line of reasoning. The first is that a jury would be authorized to draw such an inference any time an interviewer discounts an initial denial and continues with aggressive questioning that produces an accusation — indeed, that is all that the inference would be based on in this case. Were we to reverse the grant of summary judgment as to Wood, then, we would thereby eliminate completely any latitude that interviewers of child victims of suspected sexual abuse must have, because pressing on past an initial denial would always give rise to potential liability. This we cannot do. Errors of this kind — inferring deliberate fabrication from the fact that an investigator discounted a witness’s statement and pressed on — -also occur elsewhere in the partial dissent’s analysis. See, e.g., id. at 1088 (permitting the jury to infer that “Carrow ... knew that Perez was making all the children lie” from the fact that A.R. said to Perez “you make all the children lie”).³

Second, as we explained, supra, Dever-eaux has never alleged that Wood or any other Defendant knew that he was innocent. His claim must therefore be based entirely on improper interviewing techniques, ie., techniques that are inherently so coercive or abusive as to give rise to liability even if used in good faith. By repeatedly basing its arguments on inferences to “guilty knowledge” on the part of Defendants, see id. at 1085 (Wood); id. at 1087, 1088 (Carrow); id. at 1089 (Alexander), the partial dissent grounds its analysis upon factual allegations that Devereaux has never made.⁴

Other, similar problems pervade the remainder of the partial dissent’s analysis. For example, it discusses the interview in which Perez, with Carrow present, threatened A.R. with charges for false reporting. It concludes that a jury could draw inferences on this basis about Carrow’s “modus operandi,” to the effect that she “had probably used similarly coercive techniques” in other interviews with other girls. Id. at 1088. The flaw in this reasoning is that there is no evidence that Carrow has ever used this “coercive” technique (ie., the making of threats), or any other, on anyone, including A.R. All that the record shows is that on one occasion Carrow was present when someone else used threats— we do not even have any evidence that Carrow approved use of the technique. How this evidence shows that the use of threats and “similarly coercive techniques” was Carrow’s “modus operandi” has been left unexplained.

The partial dissent’s case against Alexander is that, having received medical evidence that C.M. might have been abused but not to the full extent that C.M. claimed, Alexander subsequently “obtained reeonfirmation” of C.M.’s story, in part by truthfully informing C.M. that C.M.’s mother had told a similar story. Id. at 1089.

At the time of this incident, Alexander had reason to believe that C.M. had been abused (because her hymen was partially torn and she had made allegations of abuse), but Alexander also had reason to believe that C.M.’s story could not be true in its entirety (because the condition of C.M.’s hymen was not consistent with the full extent of the abuse she had alleged). Notwithstanding the partial dissent’s conclusions to the contrary, truthfully informing a witness about another witness’ corroboration is not such an inherently coercive or abusive technique that Alexander knew or should have known it would lead to false information — rather, Alexander could have reasonably believed that by taking C.M.’s side, so to speak, she could gain C.M.’s trust and persuade her to describe what sort of abuse had really taken place. This may or may not be the wisest approach to a witness whose story has already been falsified in part, but it cannot serve as the foundation for a deliberate-fabrication-of-evidence claim.

Devereaux has had ample opportunity to marshal his evidence and focus his arguments on Defendants, rather than on Perez. If the partial dissent’s observation that the “record and briefs are not as clear as we might like” because “the case was focused on Detective Perez,” id. at 1084, is meant to excuse Devereaux’s failure to marshal the evidence against Defendants, we are unpersuaded. In the district court, Abbey, Alexander, Carrow, and Wood moved for summary judgment separately from Perez. Devereaux then filed a memorandum in opposition to their motion separately from his opposition to Perez’s motion. Devereaux has repeatedly been put on notice that he must present and argue the evidence against Defendants. If his case was “focused” on Perez, it was only because the only evidence Devereaux had was against Perez, and he had none against Defendants. In that state of the record, it cannot be gainsaid that the district court correctly granted summary judgment in favor of Abbey, Alexander, Carrow, and Wood.

One final point merits emphasis: The partial dissent does not purport to present arguments that it finds in Devereaux’s pleadings and briefs. Rather, it creates the factual allegations that Devereaux needs and then proceeds directly to the record, mining it for evidence to support the necessary allegations. We reject this approach for the simple reason that we are not Devereaux’s attorneys. It is not the role of this court to “manufacture arguments for an appellant.” Greenwood, 28 F.3d at 977.

IV. CONCLUSION

The investigatory behavior of which Devereaux complains is indeed troubling, and we do not condone it. But, in three attempts to do so, Devereaux has never made or provided evidentiary support for allegations that warrant the imposition of § 1983 liability on Defendants. The judgment of the district court is, therefore,

AFFIRMED.

1 . In this regard, it is worth noting that the medical examination of Linda Miller’s daughter, which allegedly showed that Miller’s allegations of abuse could not be true, took place after nearly all of the allegedly improper conduct of which Devereaux complains. Thus, even if the medical falsification of Miller's story proved that Devereaux was innocent (rather than just proving that Miller’s story, or certain parts of it, were false), it happened too late to serve as evidence that Defendants knew Devereaux was innocent when they engaged in the conduct of which he complains.

2 . Similarly, the partial dissent notes, in its case against Wood, that "A.S. had made an allegation against someone in Wood’s own office.” Id. at 1086. The allegation was made in the same June 1995 interview conducted by Devereaux’s attorney. The record of the interview does not indicate that A.S. had ever voiced that allegation before that date.

3 . We do not suggest that such inferences would, in all circumstances, be unreasonable. What we do hold is that such tenuous inferences, standing alone, do not constitute sufficient evidence to survive summary judgment.

4 . We return to this point, infra.