Cherry v. Tyler, 1:18-cv-01268-JLT-EPG

Background

On June 9, 2016 MPD officers (including Tyler) conducted a probation search of Cherry that led to a later arrest and discovery of contraband; Cherry thereafter criticized Tyler publicly.
On November 4, 2016 Cherry and off-duty MPD Sergeant Tyler (serving as a volunteer football coach) exchanged words at a high‑school game; Tyler carried an off‑duty firearm but did not arrest or detain Cherry at the game.
The next day Tyler reported the confrontation to Oakdale PD (OPD) and to MPD supervisors; OPD’s Sergeant Carrillo prepared a report that largely adopted Tyler’s recitation and OPD issued an I&B (information & belief) leading to Cherry’s arrest by MPD; criminal charges were later dismissed.
Cherry sued under 42 U.S.C. § 1983 alleging false arrest, First Amendment retaliation, due‑process (fabrication), failure to intervene, and conspiracy against Tyler and Lt. Seese; cross motions for summary judgment were filed.
The court found triable issues whether Tyler acted under color of state law (he was presented as the investigating officer in the prosecution), granted summary judgment for defendants on conspiracy and as to Seese, denied defendants’ MSJ in other respects, and denied Cherry’s MSJ.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tyler acted under color of state law	Tyler acted as a state actor: he reported threats and functioned as the investigating witness in the prosecution	Tyler was off‑duty and acted personally; reporting a crime is a private act, not state action	Triable issue of fact; summary judgment denied as to Tyler on color‑of‑law
Whether Seese caused arrest or is liable (failure to intervene)	Seese texted "Arrest him" and failed to stop Tyler or MPD, so he is liable	Seese had no role: off‑duty, only sent a text after OPD issued the I&B, and took no action that led to the arrest	Court granted summary judgment for Seese; no evidence he caused or could have interceded
Conspiracy to falsely arrest Cherry	Tyler, Seese (and others) agreed to and implemented a plan to falsely arrest Cherry	No meeting of the minds; texts and post‑hoc conduct insufficient to prove an unlawful agreement	Conspiracy claim dismissed; summary judgment for defendants on that claim
False arrest / probable cause; collateral estoppel; qualified immunity	No probable cause existed; court should grant summary judgment for Cherry; qualified immunity unavailable to private/state actors who fabricated evidence	Defendants invoke probable‑cause finding at preliminary hearing and assert qualified immunity	Issue preclusion inapplicable (differences in evidence / allegations of fabrication); genuine disputes of material fact on probable cause and fabrication; Cherry’s MSJ denied; qualified immunity not resolved on summary judgment

Key Cases Cited

West v. Atkins, 487 U.S. 42 (1988) (state employee acts under color of law when abusing position given by the State)
Anderson v. Warner, 451 F.3d 1063 (9th Cir. 2006) (three‑part test for off‑duty officer acting under color of law)
Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136 (9th Cir. 2020) (applies three‑part test for off‑duty officers)
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) (private party liable when willful participant in joint action with the State)
DeGrassi v. City of Glendora, 207 F.3d 636 (9th Cir. 2000) (private persons jointly engaged with state officials act under color of law)
Wige v. City of Los Angeles, 713 F.3d 1183 (9th Cir. 2013) (preclusive effect of preliminary‑hearing probable‑cause findings and exceptions)
Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir. 2004) (collateral estoppel does not apply where probable‑cause finding rests on fabricated evidence)
Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010) (conspiracy requires proof of shared unlawful objective, not mere assistance in prosecution)
Saucier v. Katz, 533 U.S. 194 (2001) (qualified immunity two‑step analysis)
Pearson v. Callahan, 555 U.S. 223 (2009) (courts may decide qualified immunity prongs in flexible order)