UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAURICE CALDWELL, No. 16-15473 Plaintiff-Appellant, DC No. v. 3:12-CV-01892- EDL CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO POLICE DEPARTMENT; KITT CRENSHAW; OPINION ARTHUR GERRANS; JAMES CROWLEY, Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Elizabeth D. Laporte, Magistrate Judge, Presiding

Argued and Submitted October 13, 2017 San Francisco, California

Filed May 11, 2018

Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Matthew Frederick Leitman,* District Judge.

Opinion by Judge Tashima

* The Honorable Matthew Frederick Leitman, United States District Judge for the Eastern District of Michigan, sitting by designation. 2 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district court’s summary judgment and remanded in an action brought pursuant to 42 U.S.C. § 1983 alleging that San Francisco Police Department officials fabricated evidence against plaintiff during his investigation for murder.

Plaintiff spent nearly twenty years in prison as a result of his murder conviction. He brought a § 1983 action after a state court granted his petition for writ of habeas corpus and ordered his release. Plaintiff alleged that a police sergeant deliberately manufactured a “show-up” by exposing him to a witness with the purpose of manipulating that witness into misidentifying plaintiff as the murder suspect. He further alleged that the sergeant deliberately fabricated a statement by plaintiff that placed plaintiff at the site of the shooting. Finally, plaintiff alleged that his interaction with police inspectors during a photo lineup were so coercive that they rose to the level of deliberate fabrication of evidence.

In reversing the district court’s grant of summary judgment in favor of the police sergeant, the panel held that drawing all reasonable inferences in favor of plaintiff, he established that the sergeant had a motive to retaliate against him. He further raised a genuine issue as to whether the sergeant arranged the show up, deliberately fabricated the statement and memorialized it in falsified notes. The panel

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CALDWELL V. CITY & CTY. OF SAN FRANCISCO 3 held that plaintiff rebutted any presumption of prosecutorial independence and established a triable issue as to whether the allegedly fabricated identification and falsified statements caused him harm.

In affirming the district court’s summary judgment as to the police inspectors, the panel held that their conduct during a photo line-up was not so coercive that it rose to the level of fabricated evidence.

COUNSEL Terry Gross (argued), Adam C. Belsky, and Monique Alonso, Gross Belsky Alonso LLP, San Francisco, California, for Plaintiff-Appellant. Sean F. Connolly (argued) and Bradley A. Russi, Deputy City Attorneys; Cheryl Adams, Chief Trial Attorney; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendants-Appellees. 4 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

OPINION TASHIMA, Circuit Judge:

INTRODUCTION

Plaintiff-Appellant Maurice Caldwell spent nearly twenty years in prison for the 1990 murder of Judy Acosta. Upon release,1 Caldwell sued San Franci