Leonard McSHERRY, Plaintiff-Appellant, v. CITY OF LONG BEACH; Long Beach Police Department; Norman Turley, Officer; Carthel S. Roberson, in his individual and official capacities, Defendants-Appellees.
No. 03-57064.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 13, 2005. Filed Sept. 8, 2005. As Amended Oct. 27, 2005.
423 F.3d 1015
I pray that soon the good men and women in our Congress will ameliorate the plight of families like the Cabrera-Alvarezes and give us humane laws that will not cause the disintegration of such families.
Noland C. Hong (argued), Michael M. Mullins (on the briefs), Brown, Winfield & Canzoneri, Los Angeles, CA, for the defendants-appellees.
Before: FARRIS, D.W. NELSON, and TALLMAN, Circuit Judges.
D.W. NELSON, Circuit Judge:
Leonard McSherry appeals the district court‘s order granting defendant City of Long Beach‘s (“City‘s“) motion for judgment as a matter of law under
McSherry also appeals the denial of two evidentiary motions in limine and requests reassignment of the case to a different judge on remand. We cannot review the district court‘s evidentiary rulings because those rulings are not final decisions reviewable under
Plaintiff McSherry brings this civil action against the City of Long Beach, alleging that the City and its employees, Officers Turley and Roberson, violated his constitutional rights during an investigation that led to his conviction for child molestation. McSherry had served nearly fourteen years of a 48-year to life prison sentence before DNA evidence exonerated him and the Superior Court of Los Angeles County ordered his release.
The investigation at issue in this case concerned the kidnapping, molestation, and rape of a six-year-old girl in March 1988. Her abduction from a playground in Long Beach, California, was witnessed by her four-year-old brother. Long Beach Police Department (LBPD) investigators first interviewed the victim about ten hours after she was released by the perpetrator. According to McSherry‘s pretrial contentions of fact, during her first interview with police, the victim described the perpetrator as “a white male with black hair and mustache [who] was short, fat and older than her grandfather.” She told the officers that he made her get into a “green ‘strange car.‘” Her younger brother told police that his sister got into a green car with a man who was “red in color” and had black hair. Five days later, a neighbor reported to the police that, on the day of the abduction, she had seen a suspicious looking man in the area where the victim was abducted. Her description in several ways matched the description given by the victim. The neighbor also had seen an unfamiliar green pickup truck in the area.
McSherry contends that the victim told the police that the perpetrator drove her to a place that had numbers on the door and had only two rooms, a bedroom and a bathroom. She described the building as a brown house with stairs, and said that she had been upstairs in a bedroom with a television and without pictures on the walls.
Several weeks after the incident, after the investigation had not provided any leads, defendant Officer Turley interviewed the victim in the presence of a social worker at a children‘s psychiatric facility. Turley showed the victim six photos in an attempt to determine if a suspect who matched the victim‘s initial description was the perpetrator. Although his appearance did not conform to the victim‘s description, McSherry‘s photo was among the choices.1 The victim allegedly identified McSherry as the perpetrator two times. Several days later, Turley showed the victim the same photos as in the earlier array, and she again identified McSherry. Turley also showed the victim photos of cars, and she reportedly identified McSherry‘s father‘s yellow Mazda station wagon as the vehicle she rode in. The victim also participated in a lineup. Although she failed to identify McSherry, she identified him to police immediately after she left the room, stating that she had been afraid to identify him during the lineup.
McSherry was arrested on May 17 at his grandparents’ home. Defendants Turley and Roberson interrogated McSherry, who provided a detailed description of the interior of the house. The next day, Turley interviewed the victim to obtain a description of the place to which she had been taken. The victim reportedly identified a photo of McSherry‘s grandparents’ house, though it did not match her earlier descriptions. She allegedly provided a detailed description of the interior, including the content of pictures on the wall, the color of sheets and blankets on the bed,
McSherry was convicted on the basis of the victim‘s and her neighbor‘s testimony and in-court identifications, and Turley‘s testimony about the victim‘s identification and description of McSherry‘s grandparents’ house. He was sentenced to 48 years to life in prison.
In December 2001, McSherry had served nearly fourteen years of his sentence when DNA analysis revealed that he had not committed the crimes. The DNA matched that of George Valdespino, who was serving a life sentence in California state prison at the time of McSherry‘s release. Valdespino had been arrested in Costa Mesa one week after the abduction, and was charged at that time with kidnapping and molesting a four-year-old girl. In December 2001, Valdespino admitted in a taped confession that in 1988 he had kidnapped a girl in the Long Beach area in a green Ford Ranchero and taken her to a motel room to molest her.
The victim testified at a deposition in 2002 that she was impatient during her interviews with Turley and just wanted to play. She recalled that Turley pointed to a number of photos during the interview. McSherry contends that the victim stated that she had not identified the yellow Mazda as the car she was kidnapped in, and that she did not give a description of the place she was taken as Turley testified at the trial.
In May 2002, McSherry filed a complaint under
Just before trial was scheduled to begin, the defendants filed a Motion for Judgment as a Matter of Law under
In its oral ruling, the court stated that “qualified immunity is not necessarily a jury issue and should be determined... at the earliest possible time.” The court determined that Devereaux v. Abbey, 263 F.3d 1070, 1075-76 (9th Cir.2001) (en banc), precluded a constitutional claim
II.
The pre-trial use of Rule 50 in this case presents a matter of first impression in this circuit. Indeed, it is difficult to find any case making a comparable use of the rule. We review the grant of judgment as matter of law de novo to determine whether the use of Rule 50 at the outset of trial, prior to the presentation of any evidence, is appropriate. See City Solutions, Inc. v. Clear Channel Comm. Inc., 365 F.3d 835, 839 (9th Cir.2004). We conclude that this use of Rule 50 is not supported by the language of the rule, the advisory committee‘s notes, or caselaw governing the proper use of Rule 50. Accordingly, we remand for further proceedings.
The text of
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
We decline to adopt this interpretation of
The advisory committee notes to the 1991 Amendments explain that motions must be made “prior to the close of the trial,” in order “to assure the responding party an opportunity to cure any deficiency in that party‘s proof that may have been overlooked until called to the party‘s attention....” Id. To that extent, the advisory committee noted that Rule 50(a)(2) “impose[s] a requirement that the moving party articulate the basis on which a judgment as a matter of law might be rendered” so as to inform the non-moving party how it might correct the deficiencies. Id. It is apparent, therefore, that the language in Rule 50(a)(2) is not intended to permit pre-trial motions but rather to prevent the moving party from waiting until it is too late for the non-moving party to perfect its case. See also Waters v. Young, 100 F.3d 1437, 1441 (9th Cir.1996) (noting that “a major purpose” of a motion under Rule 50(a) is to give the non-moving party notice of the deficiency).
The advisory committee notes also make clear that a court may not grant a motion for judgment as a matter of law before a party has presented evidence in the case. The court is authorized to grant judgment as a matter of law “at any time during the trial, as soon as it is apparent that either party is unable to carry a burden of proof” required, and it may rule “as soon as a party has completed a presentation on a fact essential to that party‘s case.”
Such early action is appropriate when economy and expedition will be served. In no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on that fact.
Id. While “early action” is thus permissible under Rule 50, the “early action” at issue here was too early: McSherry was not afforded an opportunity to present evidence bearing on the issue of qualified immunity, nor was he “apprised of the materiality of the dispositive fact.” Id. Although McSherry was permitted to file an opposition, he was not informed that the court would treat the defense‘s motion as one for summary judgment, nor that the failure to present evidence to the court prior to trial would be fatal to his case.
Although cases exist in which courts have granted judgment as a matter of law at very early stages in the proceedings, none suggests that such a motion should have been granted under the circumstances presented here. See Moore v. J.H. Matthews & Co., 473 F.2d 328, 329-30 (9th Cir.1973) (construing a judgment as a matter of law granted after opening statements as a judgment on the pleadings); United States v. Vahlco, 720 F.2d 885, 889 (5th Cir.1983) (cautioning that it did not “much approve of the irregular procedure that the trial court followed in granting a directed verdict before the non-moving party had a chance to put in evidence“). The Fifth Circuit recently considered whether a plaintiff could be considered to be “fully heard” under Rule 50 where the
Defendants argue that because qualified immunity is a complete immunity from suit, we should sanction the pre-trial use of Rule 50 in this case. Although qualified immunity should be determined as early as possible, see Saucier v. Katz, 533 U.S. 194, 200-01 (2001), this policy does not override our concern that McSherry was not provided 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.
Treating the motion as a motion for judgment on the pleadings,4 it may be granted only if, taking all the allegations in the pleading as true, the moving party is entitled to judgment as a matter of law. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001). Pre-trial dismissal on qualified immunity grounds is inappropriate if the plaintiff establishes that material issues of fact exist. LaLonde v. County of Riverside, 204 F.3d 947, 953 n. 10 (9th Cir.2000); see also id. at 963(“[T]he facts are disputed, and the disputed facts here should have been submitted to the jury, even when qualified immunity from suit was an issue.“) (Trott, J., concurring in part and dissenting in part). “[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the
Because the district court inappropriately granted judgment as a matter of law before McSherry had an opportunity to be fully heard on the issue of qualified immunity, we remand the case to the district court for further proceedings consistent with this opinion.
III.
The parties argued numerous motions in limine, of which two are contested on appeal. Although neither party raises the question of our ability to review these rulings, we have an independent obligation to determine whether we have subject matter jurisdiction. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir.2004). We conclude that we may not review these questions because the district court‘s preliminary evidentiary rulings are not final decisions reviewable under
The reason that we may not review such rulings is clear. For one, as the Supreme Court has noted:
Any possible harm flowing from a district court‘s in limine ruling... is wholly speculative. The ruling is subject to change when the case unfolds.... Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.
Luce, 469 U.S. at 41-42. Furthermore, we may reverse the district court‘s evidentiary rulings only if McSherry demonstrates that he has been prejudiced by the ruling, such that any error “more probably than not... tainted the verdict.” Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir.2001). “It is impossible to determine whether the
IV.
McSherry requests that the case be remanded to a different judge, arguing that “unusual circumstances” support a reassignment. This court has the authority to remand a case to a different judge, but generally only does so if the judge has shown a personal bias or if “unusual circumstances” exist.
United States v. Sears Roebuck & Co., Inc., 785 F.2d 777, 779-80 (9th Cir.1986). The factors for an “unusual circumstances” remand are:
- whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected,
- whether reassignment is advisable to preserve the appearance of justice, and
- whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Id. at 780. If either of the first two factors is present, reassignment is appropriate. Id. We conclude that this case does not call for the extraordinary measure of reassignment.
McSherry points to the judge‘s decision to limit the length of trial as evidence that the judge was biased. In considering the judge‘s stringent time limitations, we note that “[t]rial courts have broad authority to impose reasonable time limits. Such limits are useful to ‘prevent undue delay, waste of time, or needless presentation of cumulative evidence.‘” Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir.2001) (citation omitted). Furthermore, the burden of a shorter trial fell upon both parties.
McSherry also argues that the judge‘s decision to grant the Rule 50 motion suggests that he prejudged the evidence in the case. The judge indicated that McSherry had not presented any evidence that the LBPD fabricated testimony. This was an admittedly unfair conclusion, because McSherry had not really presented any evidence. However, this does not mean that the judge would not consider the evidence fairly once presented.
In general, the judge treated the parties evenhandedly and with respect. He noted that he was “extremely impressed with the professionalism” of the parties. Both sides won and lost some evidentiary motions in limine. The court granted McSherry‘s motion to retax costs, penalizing the defense for delay in bringing its qualified immunity motion. Although the court erroneously granted defendants’ Rule 50 motion, the record does not indicate that the judge would have “substantial difficulty in putting out of his or her mind previously-expressed views.” Sears Roebuck & Co., Inc., 785 F.2d at 780. Considerations of judicial efficiency also counsel that the judge who has ruled on motions in limine and is familiar with the parties’ trial plans would be best situated to serve as the judge on remand, whether for trial or for other proceedings as appropriate.
CONCLUSION
Because the district court inappropriately granted the City of Long Beach‘s motion for judgment as a matter of law before any evidence had been presented, we reverse the grant of judgment as a matter of law. We remand the case for further
REVERSED and REMANDED.