This is a civil rights case brought pursuant to 42 U.S.C. § 1983. In 2000, Plaintiff was convicted in Kern County Superior Court of attempted kidnaping and false arrest. He was sentenced to two life terms. After serving three and one-half years of his sentence, his conviction was vacated on habeas corpus on the ground that several pivotal child witnesses recanted their trial testimony. He now seeks civil damages from the County of Kern and various individual County and State officials involved with his arrest, prosecution, appeal, and habeas petition.

Before the court for decision are cross-motions for summary judgment concerning all claims. (Docs. 42, 60 65.) Also 1currently pending is a motion to reinstate dismissed defendant Deputy Public Defender Leslie Greer (Doc. 38), as well as a motion to bifurcate the trial (Docs. 55 58).

II. BACKGROUND

A. The Incident and Initial Investigation.

On November 25, 1999, Carol Cooper called the Kern County 911 dispatcher to report that Plaintiff grabbed a child named Samantha and placed her on the handlebars of his bicycle. (County's Ex. I, 911 call transcript; Fennel Decl. at ¶ 4; Dixon Decl. at ¶ 4-6.) Kern County Sheriff's Deputies Fennel and Dixon were dispatched to investigate the complaint. When they arrived on the scene, the parents and several other adults restated the complaint made to the 911 operator. Each of the adults confirmed that Plaintiff grabbed Samantha and placed her on his bicycle. The parents also told the Deputies that Plaintiff grabbed Brandon and pulled him.

Deputy Fennel's essentially undisputed description of his involvement details the information gathered during the investigation:

On November 25, 1999, I was on patrol in metropolitan Bakersfield. I was dispatched to a call in which it was reported that a suspicious man was annoying children in an apartment complex at 811 Beardsley Avenue, apartment #14. When I arrived, I spoke to Carole Perry who told me that she was the mother of eight-year-old Breanna Blankenship. Perry reported also that eight-year-old Samantha Spoon was Breanna's half-sibling and that she was visiting Perry's home.

Perry told me that Breanna and Samantha reported to her that a man on a bicycle offered the girls money to go with him and grabbed Samantha in an attempt to force her to go with him. Perry said that a little boy, Brandon McElroy, had also been grabbed by the man. Perry said that both girls appeared to [be] frightened and that they thought that man was still in the apartment complex. Perry said that she and her father, Richard Bond, went out to the parking lot and saw a man [on] a bicycle traveling north on Beardsley Avenue. Perry and Bond followed the man to a residence at Plymouth Avenue. Perry said that she approached the man and asked him what he was doing at the apartment complex. The man replied that he was there to pick up a girl but couldn't locate her.

After Perry explained to me what Samantha and Breanna had told her, I spoke to Samantha, Breanna and Tiffany Grady. When I spoke to the girls, I did not suggest to them that anything happened. Instead, I asked each child to tell me if something happened. I did not use leading or suggestive questioning and I did not coerce or pressure the girls to tell a particular version of the events. Instead, each girl told me her account of what happened. I recorded what the girls told me in the incident report I prepared. The girls' demeanor appeared frightened. Breanna had difficulty talking about the incident. However, I did not force her to speak but allowed her to take her time in telling what happened. I did not find this to be unusual but, instead, consistent with the fear that her demeanor indicated to me she felt. The girls' statements were each substantially similar to the others. Also, Deputy Dixon interviewed another child, Brandon McElroy, who also described the incident markedly similarly to the girls. I did not speak with Brandon McElroy.

(Fennel Decl. at ¶¶ 4-5.)

Deputy Dixon spoke with Brandon McElroy and his mother Edie Kincaid. Dixon's account of his involvement in the investigation is undisputed as well:

Upon my arrival, I contacted BRANDON DEAN MC ELROY. MC ELROY told me he was playing in the driveway area of his apartment with a lot of other children. MC ELROY saw the suspect, who was later identified as Kenneth Faulkner, riding a bicycle through the apartment complex toward Beardsley Avenue. Faulkner stopped next to MC ELROY leaning over on his bicycle and grabbed MC ELROY by the left hand and wrist area. Faulkner told MC ELROY "Come with me." MC ELROY attempted to pull his hand away from Faulkner and then began screamning. Faulkner let go of MC ELROY when he started screaming and then rode away on his bicycle.

I asked MC ELROY if Faulkner attempted to place him on his bicycle, pick him up, or pull him away. MC ELROY told me Faulkner just pulled on his arm. I asked MC ELROY to demonstrate for me how Faulkner pulled him. MC ELROY placed both of his hands on my left hand and pulled me a distance of approximately one-and-a-half-to-two feet. I asked MC ELROY if he was sure this was how far Faulkner pulled him. MC ELROY said he was. MC ELROY described Faulkner as a white male wearing a blue hat, blue shirt, glasses, having brown hair with a long ponytail, and blue eyes. MC ELROY also said Faulkner was riding an older blue bicycle with hand brakes on top of the handlebars. This concluded my interview with MC ELROY.

(County's Ex. H, Incident Report prepared by Dixon at 3-4.) Dixon denied using coercion or pressure when interviewing Brandon:

When I spoke to [Brandon], I did not suggest to him that anything happened or what had happened. I asked him to tell me if something happened. I did not use leading or suggestive questioning and I did not coerce or pressure the boy to tell a particular version of the events. Despite his age (five-years-old) Brandon told me what happened. I recorded what he told me in an "additional narrative" report I prepared.

(Dixon Decl., at ¶ 7.)

Deputies Fennel and Dixon then placed Plaintiff under arrest. Fennel explained to Plaintiff that he was being arrested on three counts of kidnaping a child for the purpose of sexual assault. But, before Plaintiff was told of the factual allegations against him, he asked the deputy whether the children said he grabbed them and then denied guilt by explaining that it couldn't be a sex crime because he "had no sexual gratisfaction [sic]." (County's Ex. E, Incident Report; Fennel Decl. at ¶ 6.) After the arrest, Deputy Dixon had no further involvement in Faulkner's case. (Dixon Decl. at ¶ 9.)

Plaintiff had two prior California convictions involving forcing females to go with him against their will for the purpose of sexual assault. In one of those incidents, he forced a minor female to walk to an alley while he was on his bicycle. (Brownlee Decl. at ¶ 9.) B. The Criminal Proceedings.

The initial criminal complaint against Faulkner was filed and the arraignment handled by a Deputy District Attorney who is not named in the complaint. ( See Brownlee Decl. at ¶ 9; County's Ex. A-C.) In December 1999, after the filing of the complaint and the arraignment, and one week before the scheduled preliminary hearing, Deputy District Attorney John Brownlee was assigned to the case. (Brownlee Decl. at ¶ 3.) Brownlee had no contact with either Deputy Fennell or Deputy Dixon, nor with any of the child witnesses until the morning of the preliminary hearing. (See Id. at ¶ 4.) Just before the initial December 14, 1999 preliminary hearing date, Brownlee spoke to Samantha Spoon in the presence of Deputy Fennel. ( Id. at ¶ 4.) Brownlee declares that he conducted this interview because he thought she might have to testify at the hearing and Brownlee wanted to know the substance of her testimony. ( Id. at ¶¶ 4-5.) After this meeting with Samantha, Deputy Fennel had no further contact with any of the witnesses in the case. (Fennel Decl. at ¶ 8.)

The preliminary hearing did not go forward on December 14, 1999 and was continued until January 2000. Brownlee had no further involvement with the case until the day of the continued preliminary hearing. On that day, Brownlee asked Brandon to be present at the courthouse because Brownlee thought he would require Brandon's testimony. Brownlee greeted Brandon in the hallway, but did not speak to him about the substance of the case. Neither Brandon nor any other child witness was required to testify at the preliminary hearing. (Brownlee Decl. at ¶ 6.) At the conclusion of the hearing, the court found that there was probable cause to bind Fulkner over for trial. (See id.)

Faulkner's trial was scheduled for May 2000. ( Id. at ¶ 7.) A few days before the trial, Brownlee met with each of the child witnesses to prepare his presentation of the evidence. (Brownlee Depo. at 39 (discussing having meetings with the child witnesses before the trial and then dismissing certain charges based on those interviews "just before trial").)

When Brownlee met with Tiffany, Tiffany confirmed most aspects of her initial story, but did not confirm that Faulkner grabbed her. At the conclusion of this interview, Brownlee immediately called Faulkner's defense counsel, Leslie Greer, informed her of the content of Tiffany's interview, and dropped the charges against Faulkner pertaining to Tiffany. ( See Brownlee Depo. at 40.)

C. Mary Blankenship's Interactions with the District Attorney's Office.

Mary Blankenship, who is the grandmother of both Samantha and Brianna, testified that she accompanied the girls to meetings with Brownlee in Brownlee's office on two or three occasions. Ms. Blankenship asserted during an evidentiary hearing in the habeas corpus proceeding that Samantha had a history of lying regarding family matters. At some point in the late 1990s, Samantha was removed from the custody of her parents because Samantha had reported to the Department of Children's services that she was being abused at home. Samantha was ultimately returned to her parents. Ms. Blankenship asserted at the habeas hearing that Samantha was returned to her parents in part because her accusation of abuse turned out to be a lie. (Pltf's Ex. A, habeas evidentiary hearing Tr., at 20.)

At some point, Ms. Blankenship formed the opinion that Samantha was also lying about her interactions with Plaintiff. ( See id. at 27.) Although the record is not perfectly clear on the timing of Ms. Blankenship's communication of this belief to Defendant Brownlee, she did assert generally that she informed Brownlee of her "doubts" before trial. ( Id. at 43.)

Q: Ms. Blankenship, Mr. Marshall just asked you if you delayed a year before you told anyone of your doubts. Isn't it correct that you told Mr. Brownlee even before trial?

A: Yes, I did. I'm Sorry.

( Id. at 43.)

In addition, Ms. Blankenship testified that, after the trial, she thought the girls were probably lying and then called Brownlee to tell him as much.

The Court: . . . The question is, after the trial, what did you do because you thought the girls were probably lying, and the first thing you did is you called Brownlee?

The Witness: Correct.

* * *

Q: When did you do that? When did you call Mr. Brownlee in relation to the trial?

A: I talked to Mr. Brownlee after the trial about it also.

Q: How long after the trial is what I am getting at. Do you know?

A: When I had called Mr. Brownlee's office to find out about the sentencing, and that's when I had told him what took place.

( Id. at 33.) But, nothing in the record clarifies when after the trial this communication took place.

Ms. Blankenship also testified that she expressed similar doubts to a "lady from the District Attorney's Office," in September 2000, and ultimately to James Faulkner "in September, shortly after trial." ( Id. at 44.)

Q: And isn't it also correct that you testified on direct that you ultimately told attorney Jim Faulkner, James Faulkner, in September 2000, shortly after trial.

A: Yes.

Q: And you also testified — well, did you in fact talk, yourself, with the D.A. investigator in September of 2000?

A: I talked with her — with a lady from the District Attorney's Office.

Q: Did you express that same doubt to her?

A: I did.

( Id.)

Brownlee maintains that he could hardly recall meeting Mary Blankenship and denied ever receiving any warnings from her regarding the veracity of any of the child witnesses. ( See Brownlee Depo. at 49-51, 57-61; see also Brownlee Decl. at ¶ 7.) When asked, hypothetically, what Brownlee would have done if he had received information prior to trial indicating that Samantha was not credible, Brownlee responded that he would have informed Plaintiff's defense counsel, Leslie Greer, because he thought "she would be entitled to that." ( Id. at 59.)

Ms. Blankenship further asserts that, when Brownlee interviewed Samantha, he suggested some answers to her. The record does not reflect, however, the substance (i.e., the materiality) of any answers she might have given. The pertinent portion of Me. Blankenship's testimony is:

Q: Do you recall Mr. Brownlee ever suggesting to Samantha answers?

A: Yes, I do.

Q: Did you ever hear him suggest to Samantha that something actually happened in a different way from what she had said?

A: Yes, I did.

Q: And then did Samantha then agree with Mr. Brownlee's version

Mr. Marshall: I am going to object to both Mr. Brownlee's suggestion and Samantha's responses as being hearsay.

The Court: The objection is sustained.

(Plaintiff's Exhibit A, Doc. 69, at 27).

Brownlee denies having suggested any answers to the witnesses or fabricating evidence in any way. (Brownlee Decl., at ¶ 7.)

D. Conviction and Sentencing.

On May 9, 2000, a jury convicted Faulkner of false imprisonment and attempted kidnaping of Brandon, but acquitted him of the remaining charges.

On June 6, 2000, Faulkner was sentenced. (Kern's Statement of Undisputed Fact ("KSUF") #47; Brownlee Decl., at ¶ 7.) Faulkner's public defender, Leslie Greer, filed a notice of appeal on June 13, 2000. (Docket from People v. Faulkner, Fifth Appellate District, Case No. F035831.) Louis Wijsan was appointed as appellate counsel for Faulkner on August 7, 2000. ( Id.)

E. Brownlee Learns Witnesses May be Recanting.

In September 2000, Brownlee learned that one or more of the girls might be recanting her trial testimony. (KSUF 48; Brownlee Decl. at ¶ 14.) At that point, Brownlee did not know the extent of the girls' intent to recant. Brownlee directed Patricia Poeschel, an investigator with the District Attorney's office, to interview the children. (KSUF 49; Brownlee Decl. at ¶ 14.) The interviews began in September but were not concluded until November 2000. (Ex. L to Poechel Depo. at 2-4).

F. Wijsen Files Opening Appellate Brief.

Around the same time Poeschel began interviewing the child witnesses, in September 2000, Wijsen filed his opening appellate brief, making no mention of any potential recantations. (State's Ex. A.)

G. Appellate Counsel Becomes Independently Aware of the Recantations.

Meanwhile, in September 2000, at essentially the same time Brownlee begame aware of the potential recantations, Faulkner's uncle, James Faulkner, who is a lawyer, learned independently that the girls were recanting their trial testimony. (James Faulkner Depo. at 56.) James Faulkner passed this information on to Wijsen. Although the record is not entirely clear on the timing of this communication, Wijsen probably became aware of the recantations in September 2000 as well, as is evidenced by representations made by Wijsen in a subsequent court filing. ( See State's Ex. B, at 3 ("In September of 2000, appellate counsel for petitioner received information alleging that Mary Blankenship . . . had contacted the kern County District Attorney's staff and advised it that her [grand]children had lied about what had occurred between them and petitioner.").)

Wijsen and James Faulkner would eventually dispatch a private investigator to take the witnesses' statements, but this process would not be completed until February 2001.

H. Marshall is Assigned to Handle the Appeal for the State.

Assistant Attorney General R. Todd Marshall first became involved in the case on September 26, 2000, shortly after Wijsen filed his initial appellate brief. (Marshall Decl. at ¶ 4.) Marshall filed a response to on behalf of the People on October 26, 2000. At that time, Marshall had no knowledge of the potential recantations. (Marshall Decl. at ¶ 5.)

I. Brownlee Receives the Poeschel Reports.

Poeschel concluded her interviews of the child witnesses in November 2000. Of the four child witnesses who testified at the criminal trial, Brianna and Samantha reported that they lied about Faulkner grabbing Samantha. Poeschel prepared reports on the interviews and provided these reports to Brownlee on or around November 21, 2001. (These reports are referenced hereinafter as the "Poeschel reports.")

While reviewing the case file and the Poeschel reports, Brownlee noticed that, at about the same time the children began to recant, Faulkner had been sending letters to the families of some of the children, offering them money to get them to "tell the truth." ( See Pltf's Exh. E F, Letters from Brownlee to Greer and Marshall.)

J. Brownlee Produces the Poeschel Reports to Greer.

On November 21, 2001, within one day of receiving the reports from Poechel, Brownlee provided copies to Leslie Greer. (KSUF 52; Brownlee Decl. 14; Pltf's Ex. E.) At the time, Brownlee did not know the status of Faulkner's appeal and believed Greer would act on the information. (Brownlee Depo. at 74.) Brownlee attached the reports to a letter which states in its entirety:

November 21, 2000 RE: People v. Faulkner

Dear Leslie,

Enclosed please find a number of reports from our investigations unit, as well as multiple letters from Faulkner to the parents of the victims.

It appears that the girls are recanting their story. However, it also appears that Brandon is sticking to his story. You might recall that the jury convicted on Brandon, acquitted on the girls.

While reading through the information, I noted that about the time Faulkner starts offering money to the family of the victim's [sic] is about the time the girls recanted their story. Interesting.

Let me know if you would like to do anything about this.

John R. Brownlee Deputy District Attorney Special Prosecutions Unit

K. Greer's Assertion that She Provided the Poeschel Reports to Wijsen.

Greer claims that she promptly passed the reports on to Wijsen, Faulkner's appellate counsel, after speaking with Wijsen on the telephone about the matter. (Greer Decl. at ¶ 6.) Plaintiff asserts that the Reports were never passed along to Wijsen.

L. Production of the Smith Reports.

Wijsen passed away at some point in 2004 or 2005 (the record is unclear as to the exact date). No deposition of Wijsen was taken nor are any declarations from Wijsen regarding this case on record.

An investigator hired by James Faulkner obtained the children's statements in February 2001. (James Faulkner Depo. at 58-59.) The investigator, Carl Smith, summarized his interviews in a report. (Ex. E to James Faulkner Depo.) According to Smith's summaries, the girls stated that they decided among themselves that they should lie and at no time claimed that anyone coerced them into lying. ( See id.) Smith also noted in his summary report that an investigator from the District Attorney's office had also been conducting post-trial interviews of the children and that Samantha and Breanna told the investigator they had lied. ( Id.; see also James Faulkner Depo. at 70.)

Smith's interviews of the child witnesses were recorded and eventually transcribed, although not until June 2001. ( See State's Ex. B.) James Faulkner gave Wijsen the transcripts in June 2001, but could not recall whether he gave Wijsen a copy of Smith's summary report prepared in February 2001.

M. Wijsen Files the First Habeas Petition.

On June 21, 2001, while the appeal was pending, Wijsen filed a petition for a Writ of Habeas Corpus with the Fifth Appellate District. (State's Ex. B.) The petition makes no reference to the Poeschel reports, but did rely upon Smith Reports to argue that the child witnesses had recanted. In this habeas petition, Wijsen acknowledged being aware of the recantations as of September 2000 and specifically that he was aware that Mary Blankenship "had contacted the Kern County District Attorney's staff and advised it that her children had lied at trial. . . ." ( Id. at 3.)

N. The Order to Show Cause.

Plaintiff asserts that Wijsen's failure to mention the Poeschel reports in this initial habeas petition is evidence that he never received them.

On October 10, 2001, the Fifth District Court of Appeals issued an order to show cause to the Kern County Superior Court why Faulkner's initial habeas petition should not be granted. The Superior Court set an evidentiary hearing for June 17 and 18th, 2002.

O. Marshall Receives the Poeschel Reports and Attaches them to a Court Filing.

On December 4, 2001, Marshall received a copy of the Poeschel Reports from Brownlee. Marshall assumed that Faulkner's counsel also had a copy, in light of the allegations of recantation contained within the initial habeas petition. (Marshall Decl., at ¶ 9.) Nothing in the record explains why Marshall did not received a copy of the Poeschel reports until December 2001, more than a year after they were produced.

On December 14, 2001, Wijsen filed a motion for bail pending appeal on behalf of Faulkner. Marshall filed an opposition to release on bail, in which he directed the state court's attention to the Poeschel Reports, but argued that the recantations should be viewed with caution because they coincided with letters sent by Plaintiff to the parents of at least one of the child witnesses. ( See State's Ex. E, Opp'n to Bail Mot., at 2.) Marshall attached to his opposition copies of the Poeschel reports a letter sent by Plaintiff to Brandon's mother. Again, Marshall assumed at the time that Wijsen was already in possession of the Poeshel reports. (Marshall Decl. at ¶ 5.)

In the first footnote to Plaintiff's motion for summary judgment Plaintiff points out that the Poeschel reports appear to have been hastily attached to the bail opposition. This, Plaintiff suggests, "raises the question of whether Investigator Poeschel's reports were perhaps inadvertently disclosed to petitioner." This assertion is baseless. Marshall referenced the reports in the body of his motion several times. ( See State's Ex. D at 2.)

P. Marhsall Defends the Conviction at the Habeas Evidentiary Hearing.

Marshall represented the State at the June 17 and 18, 2002 hearing on Plaintiff's initial habeas petition. According to the Fifth Appellate District's description of this hearing "Brandon was the only witness who testified consistently at both the trial and the evidentiary hearings." (State's Ex. E at 5.) The Superior Court denied the writ, finding that Faulkner did not meet his burden of proof; that Brandon's testimony was consistent; and that, while Breanna and Samantha both admitted lying at trial, they both consistently stated that Faulkner offered them $20 to accompany him. Finally, the Superior Court found that Faulkner's post arrest statement that he had "no sexual gratification" was compelling evidence of guilt.

Q. The Second Habeas Petition.

On September 25, 2003, the Fifth Appellate District granted Wijsen permission to file a second habeas petition. ( See Pltf's Ex. M at 7.) In the second petition, filed October 18, 2002, Wijsen alleged, among other things, misconduct with respect to disclosure of the Poeschel reports. Specifically, Wijsen alleged that he first became aware of the Poeschel reports when they were attached by Marshall to the State's opposition to Plaintiff's bail motion. ( Id. at 28.)

Unaware that the District Attorney's investigator had already uncovered the fact that the principal witnesses against petitioner committed perjury at trial, Private Investigator Carl Smith interviewed the witnesses and found that they had falsely accused petitioner and perjured themselves at trial.

If petitioner had known that the commission of perjury was already known to the People, he would have so advised the Court in this Petition [] or the related motions. As it was, he could rely only on his own discovery of what to the Court and petitioner himself was newly discovered evidence, which unequivocally established that the prosecution's key witnesses had committed perjury.

While the Attorney General persisted in intensive efforts at persuading this Court that it must not issue an Order to Show Cause and that the Petition for Writ must be denied because petitioner's claims would be untrustworthy, neither the Attorney General nor the District Attorney disclosed to the Court or petitioner's counsel that exculpatory evidence in the People's possession showed the trustworthiness of the claims. Even after this Court issued the Order to Show Cause, respondent kept this Court and the Superior Court and petitioner in the dark about the fact that the key witnesses had recanted to the People long before what respondent called their "purported recantations" to Investigator Smith.

Not until respondent filed an Opposition to petitioner's motion for Release on Bail with the Superior Court on or about December 21, 2001, to which it attached the reports by Investigator Poeshel (Appendix), did petitioner learn from this perhaps inadvertent inclusion of the existence of the exculpatory evidence, which supported his claims on appeal and on habeas corpus.

( Id. at 28-30.) Wijsen argued that these circumstances constituted a Brady violation representing an "additional independent ground to mandate reversal of petitioner's convictions." ( Id. at 31.)

This second petition was successful. The Fifth Appellate District essentially reasoned that Brandon's testimony, although credible, contained no proof of the intent element. Because the only proof of intent came from the girls' recanted testimony, the conviction could not stand. ( See State's Ex. E.)

R. Recent Procedural History.

Plaintiff filed this lawsuit on July 14, 2004, seeking civil damages from the County of Kern, the State of California, and various individual defendants. (Doc. 1.) A hearing on the pending motions for summary judgment, for reinstatement of dismissed Defendant Greer, and to bifurcate was held on March 13, 2006. (Doc. 96.) At the hearing, Plaintiff was invited to submit a supplemental filing containing references to the record. Plaintiff filed his supplemental brief on March 21, 2006 (Doc. 97), to which the County replied (Doc. 98, filed March 22, 2006). Thereafter, the matter was submitted for decision.

III. SUMMARY OF THE COMPLAINT

The operative First Amended Complaint contains a laundry list of constitutional deprivations allegedly suffered by Plaintiff at the hands of Defendants. For example, Plaintiff's first claim, which is directed at the Kern County Sheriff's Department, the District Attorney's office, the Public Defender's office, and a number of individual employees of those offices, alleges:

. . . acting in their official capacities and with deliberate indifference, gross negligence and/or reckless disregard to the safety security and constitutional and statutory rights of plaintiff, maintained, enforced, tolerated, permitted, acquiesced in, and/or applied inter alia policies and practices including detaining and arresting without reasonable suspicion or probable cause; encouraging and partaking in perjury and falsification of statements and testimony causing false imprisonment and malicious prosecution; selecting, retaining, training and assigning employees with demonstrable propensities for misconduct including false arrest and subornation of perjury; failing to adequately train, supervise and control employees in the proper arrest, investigation of, and prosecution of suspects; failing to adequately discipline employees involved in the misconduct described [] including condoning and encouraging employees in the belief that they can violate the rights of persons such as the plaintiff in this action with impunity, and that such conduct will not adversely affect their opportunities for promotion and other employment benefits; failing to adequately investigate incidents such as the events complained of herein and conducting investigations in such a manner as to conceal the misconduct of employees, condoning and encouraging the fabrication of evidence following incidents involving the improper arrests and investigations.

The named employees of the Public Defender's Office, Leslie Greer and Mark Arnold, were voluntarily dismissed on April 20, 2005. Plaintiff has now moved to reinstate Ms. Greer as a defendant.

(Doc. 12, filed Nov. 10, 2004, at ¶ 18.) Plaintiff alleges that the above-described conduct violated Plaintiff's "Fourth, Fifth, and Fourteenth Amendment rights."

Plaintiff's own description of the case in his motion for summary judgment hardly clarifies his allegations:

Plaintiff alleges his arrest, wrongful conviction, and subsequent malicious prosecution were obtained through the intentional efforts of all named defendants to prosecute plaintiff's wrongful conviction through the use of false statements and perjured testimony of minor children witness/victims who were being manipulated and directed and encouraged by defendants. Plaintiff further alleges that his conviction was upheld as a result of the defendants wrongful acts in violation of plaintiff's constitutional rights in suppressing the perjured testimony from the Court, the jury and from plaintiff and his counsel.

Plaintiff further alleges that the District Attorney's office and the Public Defender's office were advised of the perjury before and during the trial and none of the prosecutors, investigators, counsel or police involved took any action to correct the miscarriage of justice. The perjurious testimony, the prejudicial investigation and the prosecution's participation in the miscarriage of justice combined to deprive plaintiff of due process and a fundamentally fair trial.

(Doc. 65, Pltf's Mot. for Sum. J., at 8.)

However, the factual submissions provided by the parties in the context of the instant cross-motions suggest that the claims have narrowed to essentially three factual allegations:

(1) that investigators and prosecutors fabricated evidence by either coercing the child witnesses into making false statements or by using improper investigative techniques;

(2) that the prosecution was warned both before and during the criminal trial that several of the child witnesses might not be telling the truth, but did nothing with this knowledge; and

(3) that both County and State prosecutors failed to timely disclose exculpatory evidence.

IV. STANDARD OF REVIEW

Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.Pro. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Anderson, 477 U.S. at 248).

The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986). The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1996). Nevertheless, the evidence must be viewed in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. A court's role on summary judgment is not to weigh evidence or resolve issues; rather, it is to determine whether there is a genuine issue for trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir. 1996).

V. DISCUSSION

A. Legal Background.

1. Section 1983.

Plaintiff brings this lawsuit under 42 U.S.C. § 1983, which provides a cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . ." To establish liability under 1983, a plaintiff must show (1) that he has been deprived of a right secured by the United States Constitution or a federal law and (2) that the deprivation was effected "under color of state law." Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). 2. Eleventh Amendment Immunity.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any such suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by the Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. The Eleventh Amendment bars suits against a state for damages or injunctive relief, unless the state has consented to or waived immunity, or Congress has validly abrogated the same. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996) ; In re Harleston, 331 F.3d 699, 701 (9th Cir. 2003). The Eleventh Amendment's "reference to actions `against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities." Regents of the Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997); see also Ulaleo v. Paty, 902 F.2d 1395, 1398 (9th Cir. 1990).

3. Suits Against Government Officials.

The Complaint states that a number of officials are being sued "officially" and "individually." The distinction between these types of allegations is critical.

a. Official Capacity Suits.

Suits against an official in her or his official capacity are treated as suits against the entity on whose behalf that official acts. In such suits, the real party in interest becomes the entity for which the official works. Hafer v. Melo, 502 U.S. 21, 25 (1991). A federal action for monetary damages against an individual State official acting in his official capacity is barred by the Eleventh Amendment in the same way that an action against the State is barred. Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997).

Although a municipal (e.g., county) official acting in her or his official capacity is not absolutely protected by the Eleventh Amendment, liability only attaches to the municipality under certain circumstances.

Municipalities cannot be held liable under a traditional respondeat superior theory. Rather, they may be held liable only when "action pursuant to official municipal policy of some nature caused a constitutional tort. . . . [T]o establish municipal liability, a plaintiff must prove the existence of an unconstitutional municipal policy.

Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003) (citing Monell v. New York City Dept. of Social Serv., 436 U.S. 658 (1978)). There are various ways a plaintiff may prove the existence of an unconstitutional municipal policy under the so-called Monell doctrine. These are discussed in context below.

b. Personal Capacity Suits.

In contrast, "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions [taken] under color of state law." Dittman v. California, 191 F.3d 1020, 1027 (9th Cir. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)) (internal quotations omitted). To establish personal liability in a § 1983 or § 1985 action, it is enough to show that the official, "acting under color of state law, caused the deprivation of a federal right." Hafer, 502 U.S. at 25 (internal quotations omitted). Public officials sued in their personal capacity may assert personal liability defenses, such as qualified immunity. Dittman, 191 F.3d at 1027.

4. Prosecutorial Immunity.

Prosecutorial immunity protects eligible government officials who perform functions "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). "Such immunity applies even if it leaves the genuinely wronged [plaintiff] without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (internal quotations omitted). A prosecutor is protected by absolute immunity for any actions that are "quasi-judicial" in nature and are performed "within the scope of [the prosecutor's] authority." Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir. 1984).

5. Qualified Immunity.

In this case, Defendants assert the defense of qualified immunity on behalf of all the individual Defendants. Deciding qualified immunity entails a two-step analysis. First, a court must ask whether a constitutional violation occurred at all. If the answer to this question is yes, the court must then inquire whether the right violated was "clearly established" by asking whether a reasonable officer could believe that the defendant's actions were lawful. See Saucier v. Katz, 533 U.S. 194, 201 (2001). B. Summary of the Cross-Motions.

The State Defendants move for summary judgment on all claims against Defendants Bill Lockyer, the Attorney General of California, and Assistant Attorney General R. Todd Marshall. State defendants argue that (1) Lockyer and Marshall both enjoy absolute prosecutorial immunity; (2) Defendant Marshall is also entitled to qualified immunity; and (3) there is no evidence that either Lockyer or Marshall violated Plaintiff's civil rights.

The County Defendants move for summary judgment on all claims against all remaining Defendants (Brownlee, Jagels, Sparks, Fennell, and Dixon). First, the County maintains that Brownlee and Jagels are entitled to prosecutorial immunity. The County also argues that it cannot be held liable as a municipality on a number of grounds: (a) the District Attorney and/or his Deputies act on behalf of the State when prosecuting crime; (b) similarly, the Sheriff of Kern County and/or his Deputies act on behalf of the State when performing law enforcement functions; and (c) Plaintiff has failed to establish municipal liability under Monell. As to all Defendants, the County maintains that there is no evidence supporting the existence of a constitutional violation. Accordingly, any individual defendants not otherwise immune are entitled to qualified immunity. Finally, the County asserts that the doctrine of judicial estoppel bars Plaintiff from arguing that the named defendants coerced the child witnesses into lying, because Plaintiff took the position in his habeas corpus proceedings that the child witnesses fabricated the lies themselves.

Plaintiff's cross-motion squarely presents one legal issue for decision: Whether the California Appellate Court decision granting Faulkner's habeas corpus petition, in which the court reasoned that the child witness recantations were material to the underlying conviction, operates to bar relitigation of the issue of "materiality" for the purposes of establishing a Brady violation. Plaintiff also appears to request judgment as to liability for at least some of the defendants, but, his motion lacks the essential factual support necessary to entitle him to judgment on any of his claims. The arguments raised therein, however, are treated as additional arguments in opposition to the defendants' motions.

For example, Plaintiff's motion is entitled a "motion for summary judgment," but, in the conclusion section, rather than requesting judgment, plaintiff prays that the court will "deny defendants['] motion for summary judgment." (Doc. 65 at 20.)

C. Official Capacity v. Individual Capacity; Supervisor Liability As Applied to Defendants Lockyer, Marshall, Sparks, and Jagels.

1. Plaintiff Has Not Established A Personal Capacity Claim Against Defendant Lockyer.

Neither Defendant Lockyer nor Defendant Marshall can be sued in this court for acts taken in their official capacity, as this would effectively constitute a suit against the State of California. The Office of the Attorney General of the State of California is an arm of the State entitled to Eleventh Amendment immunity. See Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992). Accordingly, no official capacity lawsuit may lie against the Attorney General's office or any of its employees.

The inquiry turns to whether Plaintiff has adduced any evidence to support personal liability claims against Lockyer and/or Marshall. A plaintiff suing a state official in his personal capacity must establish a "connection between the state official and the allegedly unconstitutional action" Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032 (9th Cir. 1999). It is not disputed that Plaintiff has established a connection between Marshall's acts and the alleged constitutional deprivation. However, the State defendants suggest that Plaintiff has failed to establish claims against Lockyer in his personal capacity.

Whether Marshall is protected from personal liability by any personal immunities is discussed below.

Personal participation is required for personal liability under 1983. See Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989). Plaintiff impliedly alleges here that Lockyer participated in the deprivation of his rights by failing to adequately supervise and/or discipline his Defendant Marshall. But, this cannot form the basis of a personal liability suit against a state official.

A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under section 1983.

Id. at 1046.

For example, in his motion for summary judgment, Plaintiff alleges that the Attorney General's office improperly withheld copies of the Poeschel reports under the heading "Defendants Implemented Policy So Deficient that It Repudiated Plaintiff's Rights Protected by the Fourth, Fifth and Fourteenth Amendments." (Doc. 65 at 10-11.)

Plaintiff cites Hansen v. Black, 885 F.2d 642 (9th Cir. 1989), for the proposition that supervisory liability may exist even without overt personal participation "if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Plaintiff quotes Hansen out of context and advances an inapposite application of supervisoral liability. The Hansen court reasoned:

Hansen alleges that the chief of police is guilty of malfeasance because he didn't properly train or supervise the officers. Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). A supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).

Supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy "itself is a repudiation of constitutional rights" and is "the moving force of the constitutional violation." Id. at 304 (internal citations omitted).

Id. at 645-46 (emphasis added) (parallel citations omitted). In support of the language cited by Plaintiff, the Ninth Circuit cites Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). Thompkins in turn cites Monell for the proposition that supervisory liability may exist even without overt personal participation. Both the Ninth Circuit in Hansen and the Fifth Circuit in Thompkins were actually referencing the form ofofficial capacity supervisor liability which may be imposed upon municipalities under Monell. This does not establish an additional basis for personal liability applicable to State officials.

Plaintiff has elicited absolutely no evidence of Lockyer's personal involvement in the acts that allegedly deprived Plaintiff of his civil rights. Lockyer asserts that he was not even aware of the case until after this lawsuit was filed. Plaintiff offers no factual rebuttal. There is no evidence that Lockyer promulgated or knew of any policy to withhold evidence in State habeas cases or that such a policy existed or operated in this case.

Lockyer is entitled to judgment as a matter of law on all claims brought against him in either his official or personal capacity. The State Defendant's motion for summary judgment as to all claims against Defendant Lockyer is GRANTED. The State Attorney General is entitled to judgment.

2. Plaintiff Has Not Established Personal Liability Claims Against Either Sheriff Sparks or District Attorney Jagels.

Plaintiff has failed to adduce evidence of personal involvement by either Sheriff Sparks or District Attorney Jagels.

Sparks apparently played no role in investigating the reports made by the children. (KSUF #42, 43.) In fact, there is no evidence that he had any knowledge of the investigation at all. Plaintiff has not established any basis for maintaining a personal liability claim against Defendant Sparks. There is no evidence that Sparks promulgated or had knowledge of a policy to falsify or withhold evidence.

The same applies to Defendant Jagels. Plaintiff has failed to adduce any evidence of Jagels' participation in the investigation and/or prosecution, other than the fact that the legal pleadings associated with the criminal prosecution filed by Brownlee bear Jagels' signature as a matter of protocol, signed by a deputy district attorney.

Defenants' Sparks and Jagels' motions for summary judgment as to any individual-capacity claims against them are GRANTED. D. Liability of the County of Kern. 1. In Federal Court, Venegas Does Not Control; The County May be Liable for the Conduct of County Sheriffs and Deputy Sheriffs.

The County argues that it cannot be liable for the allegedly unlawful official acts of those Defendants who are County Sheriffs, because, according to the County, County Sheriffs in California act on behalf of the State, not the County when investigating crime. The County's defense is based on a recent California Supreme Court case, Venegas v. County of Los Angeles, 32 Cal. 4th 820 (2004), which examined whether a county sheriff acted as an agent of the state when conducting a criminal investigation. The Venegas court examined applicable provisions of the California Constitution, several relevant California statutes, and prior California cases to reach the conclusion that "sheriffs act on behalf of the state when performing law enforcement duties."

Application of this seemingly straightforward holding is complicated by the fact that Ninth Circuit decisions do not follow and squarely contradict Venegas. The case most on point is Brewster v. Shasta County, 275 F.3d 803 (9th Cir. 2001), which holds that county sheriffs in California act on behalf of their county, not the state, during the course of investigating crime. Brewster predates Venegas and the Ninth Circuit has yet to address Venegas directly.

At first glance, the United States Supreme Court's holding in MacMillan v. Monroe County, 520 U.S. 781 (1997), suggests that the more recent pronouncement in Venegas should control. MacMillan held that whether an official acts as a policymaker for a state is a question of state law. See also City of St. Louis v. Proprotnik, 485 U.S. 112, 118-19 (1988) ("We begin by reiterating that the identification of policymaking is a question of state law . . . not a question of federal law.") The United States Supreme Court has held elsewhere that "[t]he California Supreme Court is the ultimate interpreter of California state law." See Johnson v. Fankell, 520 U.S. 911, 916 (1997).

However, there is Ninth Circuit authority that suggests application of the MacMillan rule would be inappropriate. For example, in Streit v. County of Los Angeles, 236 F.3d 552 (2001), the Ninth Circuit held that the Los Angles Sheriff's department acted on behalf of the County, not the State, when administering local prison policy. In Streit, Los Angeles County urged the Ninth Circuit to simply adopt the holding of a parallel California case, County of Los Angeles v. Superior Court (Peters), 68 Cal App. 4th 1166 (1998), which held that the Los Angeles Sheriff acted on behalf of the State in setting the policies governing the release of prisoners from the Los Angeles County. The Ninth Circuit rejected Los Angeles County's argument, primarily on the ground that Peters was distinguishable. In addition, the Ninth Circuit noted that "even if the case were on all fours we would not be bound by Peters's conclusion regarding section 1983 liability because such questions implicate federal, not state, law." 236 F.3d at 563. The Ninth Circuit performed its own independent analysis of California law.

The Ninth Circuit spoke even more directly in Weiner v. San Diego County, 210 F3d 1025, 1029 (9th Cir. 2001), which examined whether a California district attorney is a state officer when deciding whether to prosecute an individual. In Weiner, the court acknowledged that McMillan calls for an analysis of California law to determine whether an official acts on behalf of the state or a county. Id.

This does not mean, however, that we must blindly accept its balancing of the different provisions of state law in determining liability under § 1983. In McMillian, the Court stated that "our inquiry is dependent on an analysis of state law," which does not mean "that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's function under relevant state law." McMillian, 520 U.S. at 785. We must, therefore, examine California's constitution, statutes, and case law.

Id. (emphasis added, parallel citations omitted).

Weiner cautions against the blind acceptance of the Venegas holding, given the existence of a contrary Ninth Circuit rule in Brewster, which is binding upon this court. See Barapind v. Enomoto, 400 F.3d 744 at 750-51.

In a concurring and dissenting opinion in Venegas, California Supreme Court Justice Kennard acknowledges that the holding in Venegas is not binding upon federal courts within the Ninth Circuit:

Because the Ninth Circuit considers California sheriffs performing law enforcement functions to be county officers, the majority's contrary conclusion here creates a split that results in immunizing sheriffs from section 1983 liability in actions brought in state court while exposing them to liability in identical actions filed in federal court. This effectively drives California civil rights plaintiffs with actions against a county sheriff out of our court system and into federal court. To ensure uniformity in the enforcement of federal civil rights law in both state and federal courts in California, the United States Supreme Court should decide which view is correct.

32 Cal. 4th at 854.

For purposes of this section 1983 case, a federal claim brought in a federal court within the Ninth Circuit, the County of Kern may be liable for the law enforcement-related acts of Sheriff Sparks. It remains to be determined, however, whether any official capacity claim against him (i.e., against the County) survives summary judgment.

At least one other district court that has addressed this issue, albeit in an unpublished opinion, is in accord. See Thomas v. Baca, 2005 WL 1030247 *3 (C.D. Cal. May 2, 2005).

2. The County Cannot be Liable for the Official Acts of a County District Attorney in Preparation for a Prosecution or to Train Others To Prosecute.

The County argues that it cannot be liable for the official acts of a District Attorney or Deputy District Attorney. In support of this proposition, the County points to both California cases and binding Ninth Circuit authority.

The operative California case is Pitts v. County of Kern, 17 Cal. 4th 340 (1998), which concerned claims against District Attorney Jagels that are remarkably similar to those brought by Plaintiff in this case. Specifically, the complaint in Pitts alleged that

the County and Jagels, in his official capacity, established a pattern, custom, and practice of procuring false statements and testimony by threat, promise, intimidation, force, bribery, and coercion of witnesses, and thereby established an official policy governing the conduct of Jagels's employees. [The complaint also alleged] the County and Jagels failed to provide adequate training, procedures, guidelines, rules, and regulations to prevent such conduct by district attorney employees, and hence were deliberately indifferent to plaintiffs' constitutional rights. The official policy and the failure to act were actual causes of the deprivation of plaintiffs' rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. In particular, [the Pitts] plaintiffs assert their constitutional right to a fair and impartial trial free of knowingly procured false testimony was violated.

Id. at 352. The California Supreme Court concluded in Pitts that the County of Kern could not be liable for Jagels' official acts because a California district attorney acts on behalf of the state in preparing to prosecute and prosecuting crimes. Pitts hald that the district attorney was a state actor when "he establishes policy or trains employees in these areas."

Just as we have concluded that in California a district attorney represents the state when preparing to prosecute and when prosecuting criminal violations of state law, we further conclude it logically follows that he or she also represents the state, and not the county, when training and developing policy in these areas. No meaningful analytical distinction can be made between these two functions. Indeed, a contrary rule would require impossibly precise distinctions. The district attorney would represent the state when he or she personally prepared to prosecute and prosecuted criminal violations of state law, but the county when training others to do so, or when developing related policies. Moreover, anytime the district attorney relied on a formal policy to handle a particular aspect of a case, that decision would be attributable to the county, even though the prosecution itself would be a state function. Such a result would be nonsensical, and would impose local government liability under the most arbitrary of circumstances.

Id. at 362. Under Pitts, Kern County cannot be liable for any acts taken by Defendant Brownlee to prepare to prosecute a crime or for Defendant's Jagels training and development of policy in these areas. This means that, regardless of any proof that would otherwise satisfy Monell, the County cannot be held liable for allegedly unconstitutional district attorney prosecutorial policies. Neither, of course, can the State, as it is immune under the Eleventh Amendment.

On this issue the Ninth Circuit is in accord. In Weiner, 210 F3d at 1031, after performing its own independent analysis under MacMillan, the Ninth Circuit concluded that a district attorney is a state actor when deciding whether to prosecute an individual.

Plaintiff argues that this rule simply does not apply to the allegations in this case because Brownlee and Jagels were acting as investigators and were not "preparing to prosecute" or "prosecuting criminal violations of state law." This argument, based primarily on a recent Ninth Circuit case concerning prosecutorial immunity, Genzler v. Loganbach, 410 F.3d 630 (9th Cir. 2005), is discussed in greater detail below. To the extent that certain of Defendant Brownlee's acts were investigatory in nature under Genzler, the County could be liable for those acts, but only if Plaintiff had otherwise satisfied Monell. As is discussed below, Plaintiff concedes that he has not established Monell liability.

3. Failure of Proof under Monell.

Even if Plaintiff could establish that any individual defendant not otherwise immune had violated Plaintiff's constitutional rights, the County can only liable be when "action pursuant to official municipal policy of some nature caused a constitutional tort. . . ." Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003). "[T]o establish municipal liability, a plaintiff must prove the existence of an unconstitutional municipal policy." Id.

Here, there is no direct evidence of the existence of a policy, nor is there any evidence of a pattern of municipal activity. Nevertheless, a municipality may be liable under Monell for a single incident where: (1) the person causing the violation has "final policymaking authority;" (2) the "final policymaker" "ratified" a subordinate's actions; or (3) the "final policymaker" acted with deliberate indifference to a subordinate's constitutional violations. Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999). However, "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Okl. City v. Tuttle, 471 U.S. 808, 824 (1985).

Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the "policy" and the constitutional deprivation. Under the charge upheld by the Court of Appeals the jury could properly have imposed liability on the city based solely upon proof that it employed a non-policymaking officer who violated the Constitution.

Id. Even if one of the Christie exceptions applies, a court should hesitate to impose liability based on a single decision.

Where a claim of municipal liability rests on a single decision, not itself representing a violation of federal law and not directing such a violation, the danger that a municipality will be held liable without fault is high. Because the decision necessarily governs a single case, there can be no notice to the municipal decisionmaker, based on previous violations of federally protected rights, that his approach is inadequate. Nor will it be readily apparent that the municipality's action caused the injury in question, because the plaintiff can point to no other incident tending to make it more likely that the plaintiff's own injury flows from the municipality's action, rather than from some other intervening cause.

Christie, 176 F.3d at 1241 (quoting Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 408-09 (9th Cir. 1997).

Here, there is no evidence of any action on the part of any supervisor at any of the named agencies, let alone any evidence of deliberate indifference. Plaintiff offers no factual rebuttal to the County's motion for summary judgment on the Monell claim and conceded this during oral argument.

The County of Kern's motion for summary judgment as to all claims against it is GRANTED. Because Plaintiff has failed to state claims against Defendants Jagels and Sparks in their individual capacities, leaving only the official capacity claims against them, their motion for summary judgment as to all claims against them is also GRANTED. E. Prosecutorial Immunity As Applied to Defendants Marshall, Lockyer, Brownlee, and Jagels.

Immunity questions should be resolved at the earliest possible stage of litigation. Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (where a case is erroneously permitted to go to trial, the immunity would have been effectively squandered).

1. Applicable Legal Framework.

Absolute immunity is most clearly applied to acts taken by a prosecutor to prepare for the initiation of judicial proceedings or for trial and which occur within the role of an advocate. See Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). However, absolute immunity also applies to investigative activities undertaken in order to prepare a case, Ybarra, 723 F.2d at 679, and to actions taken by prosecutors for the purpose of determining whether to bring charges in the first place, Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984). As a general rule, absolute immunity applies to acts "having more or less connection with the general matters committed to [the prosecutor's] control or supervision." Ybarra, 723 F.2d at 678.

The Ninth Circuit has extended the protection of absolute immunity to a prosecutor's acts before, during, and after trial:

Because by hypothesis resentful defendants initiate suits irrationally or for purposes of harassment, they are just as likely to ascribe unconstitutional purposes to the prosecutor's post-trial acts as to his acts before and during trial. . . .

Demery, 735 F.2d at 1144-45 (internal citations and quotations omitted).

Like allegations of misconduct during the trial preparation stage, allegations of misconduct in a prosecutor's post-trial handling of a case can generally be corrected without resort to a civil trial for damages. This claim . . . is the type that the Supreme Court, in its wisdom, wanted to prevent and recognized would be better handled by various post-trial remedies. . . .

Id.

However, the line between covered and non-covered conduct is not always clear. A recent Ninth Circuit case, Genzler v. Loganbach, 410 F.3d 630 (9th Cir. 2005), provides the rule of decision here. Genzler considered the "difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand." Id. at 639 (citing Buckley, 509 U.S. at 273). The Ninth Circuit reasoned that absolute immunity should not apply "[w]hen a prosecutor performs the investigative functions normally performed by a police officer." However, when a prosecutor "is organizing, evaluating, and marshaling that evidence in preparation for a pending trial, in contrast to the police-like activity of acquiring evidence which might be used in a prosecution," it is more appropriate to apply absolute immunity. Id. The Ninth Circuit suggested that "the timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official's core advocacy function in the judicial process. . . ." Id. For example, "when a witness is being coached at or during a break in trial, the prosecutor is protected by absolute immunity even if he or she is instructing the witness to lie." Id. (citing Imbler, 424 U.S. at 430, 431 n. 33). But, timing is not dispositive and must be considered alongside evidence concerning the function that was being performed during the particular interview. Id. at 640.

The Genzler court applied this approach to two factual scenarios. In the first scenario, prosecutors met with a witness more than one month prior to the preliminary hearing, approximately one week prior to the filing of the complaint, and at least several days prior to the completion of the police investigation and written synthesis. In identifying the function being performed, the Ninth Circuit found that, at the same time the interview was performed, the prosecutor "was engaged in other work that can only be characterized as police-type investigation." Id. In examining the function of the interviews, the Genzler court focused on the nature of the information obtained by the prosecutor from various witnesses.

For example, [the prosecutor] and [his supervisor] interviewed Scott Davis [a witness to the homicide] on April 25, 1996. The notes from the conversation reflect only a narrative from Davis' point of view about the events of the stabbing. [The prosecutor] joined police Detective Warrick in a meeting on June 3, 1996 with Shery Logel, Genzler's ex-girlfriend, discussing her story about giving Genzler's knife to [another witness], and Genzler's character in general. This conversation, too, was police-type investigative work, as indicated by the nature of the information obtained and by the presence of Detective Warrick. On June 5, 1996, [the prosecutor] interviewed Paul Ernst, another witness to the homicide, about what he had seen. Similarly, on June 28, 1996, [the prosecutor] met again with John Belsan, who came forward with evidence about a past fight with Genzler. Again, [the prosecutor's] notes from this conversation reflect only Belsan's narrative about what happened in that confrontation. That [the prosecutor] was engaged in police-type investigative work during the time he met with Flanders supports an inference that he was also engaged in such work when he met with her.

Id. at 640-41. In all of these examples, the prosecutor was still at the stage of gathering information about the incident from various points of view. Interview noes did not reflect opinions about credibility, appraisal as a witness, or other type of information or evaluation normally characterized as attorney work product. This information-gathering function in conjunction with the timing of the interviews caused the Genzler court to conclude that absolute immunity was not available under the circumstances. Id. at 641.

In the second scenario reviewed by the Genzler court, prosecutors met with a witness a a few days after the filing of the criminal complaint (and only a week or so after the interviews analyzed above). The Genzler court did not "view the filing of the complaint as an event after which, by definition, all actions by the prosecutor and his staff are protected by absolute immunity," noting that the preliminary hearing was still more than three weeks away. The functional analysis revealed that "officials were continuing the process of investigation into the facts that would inform whether there was such probable cause, and the precise charges on which Genzler would stand trial had yet to be determined." Id. at 642. To reach this conclusion, Genzler examined the prosecutor's notes from the second meeting

They are captioned, "Witness Interview." These interview notes, like notes taken of other interviews by [the prosecutor], record only a narrative of what Flanders reportedly said at the meeting about the events of April 17 and April 18. The notes state that "FLANDERS had told me during a conversation that took place at her residence several days earlier that she had a clearer picture in her mind of the events surrounding HARLESS' death. She felt that she could relate them in a more organized fashion than she may have done earlier in the investigation." Specifically, the notes state that Flanders was "distracted" by the arrival of Scott Davis, which is inconsistent with the initial statement Flanders made to police. The notes thus reflect that [the prosecutors] were in the process of gathering information from Flanders during the meeting and possibly encouraged her to lie as part of their process.

Id. (emphasis added).

This provides some guidance about how a court should draw a line between "organizing, evaluating, and marshaling [] evidence in preparation for a pending trial," an activity protected by absolute immunity, and "the police-like activity of acquiring evidence which might be used in a prosecution," for which a law enforcement office or prosecutor only receives qualified immunity. Id. The prosecutor was not protected by absolute immunity while interviewing a witness after the filing of the complaint but before the probable cause determination, and where the interview could be characterized as part of the "process of gathering information." It is unclear how much weight should be given to the timing of the interviews in relation to the function performed. Genzler cites with approval a Fifth Circuit case, Cousin v. Small, 325 F.3d 627, 633 (5th Cir. 2003), that provides an example of an interview that is covered by prosecutorial immunity:

From a practical perspective, if the functional aspect was dispositive, absolute immunity would be essentially eviscerated.

In Cousin, the Fifth Circuit held that a declaration by a witness who was allegedly coerced and intimidated into lying eliminated any ambiguity about whether the prosecutor was engaged in an investigatory or quasi-judicial function when he interviewed that witness. 325 F.3d at 633. The declaration clearly showed that when the prosecutor met with the witness, "he did so to tell [the witness] how he should testify."

Genzler, 410 F.3d at 642. Genzler distinguished Cousin on the ground that:

Here, by contrast, the interview notes show a process of police-type investigation — or, viewed in the light most favorable to Genzler, a process of manufacturing evidence while performing police-type investigative work — not [the prosecutors] acting as advocates by actively preparing Flanders for her testimony in court.

Id.

One clear rule ascertainable from Genzler and Cousin is that a prosecutor is protected by absolute immunity when the prosecutor is accused of "telling the witness how to testify" because, at that stage, the prosecutor is acting as an advocate[] by actively preparing the witness for testimony in court. Id. If Defendants' conduct falls within this description, they are entitled to absolute immunity.

Genzler is entirely consistent with Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003), the Ninth Circuit's most recent case directly addressing a prosecutor's immunity from civil liability for violating Brady. Broam affirmed the general proposition that "a prosecutor's decision not to preserve or turn over exculpatory material before trial, during trial, or after conviction is a violation of due process under Brady." Id. However, because a prosecutor enjoys absolute immunity from liability "when they are performing a quasi-judicial function," a prosecutor is nonetheless immune from civil liability for a Brady violation that takes place within his or her quasi-judicial function. Id. (emphasis added). Genzler expands upon Broam's holding to provide guidance as to when a prosecutor's acts should be deemed "quasi-judicial" in nature.

2. Absolute Immunity As Applied to Defendant Marshall.

Here, Plaintiff alleges, essentially, that Defendant Marshall was involved in the deprivation of Plaintiff's rights in several ways at several stages in the proceedings. First, Plaintiff alleges that Marshall failed to timely turn over the Poeschel Reports to the appropriate authorities in violation of Brady. Second, Plaintiff alleges that Marshall improperly conducted interviews of the child witnesses prior to an evidentiary hearing in the habeas proceedings. Finally, Plaintiff suggests that Marshall acted in bad faith when, despite having concluded during the interviews that Samantha and Breanna had lied, he "fail[ed] to acknowledge plaintiff's claims of illegal search, seizure, and wrongful prosecution following [the] opinion of the California 5th Appellate District Court . . ." and failed to withdraw the State's opposition to Plaintiff's post-trial motions. a. Marshall's alleged failure to turn over the Poeschel Reports.

It is possible to interpret Plaintiffs allegations as alleging that Marshall's conduct during the interviews of Samantha and Breanna violated Plaintiff's constitutional rights, but this would make little sense, given that Marshall concluded at the end of these meetings that the two girls had lied and there is no suggestion Marshall had any role in shaping the girls' statements.

Marshall first became involved in the case after the initial appellate brief was filed on September 26, 2000. Marshall filed the State's response on behalf of the People on November 14, 2000. At that time Marshall had no knowledge of the potential recantations. On December 4, 2001, Marshal received a copy of the Poeschel Reports. Marshall assumed that Faulkner's counsel also had a copy. (Marshall Decl., at ¶ 9.) On December 15, 2001, Wijsen filed a motion for bail pending appeal on behalf of Faulkner. Marshall filed an opposition to the bail motions and attached the Poeschel Reports to it as exhibits. To the extent that this evidence supports the factual assertion that Marshall failed to hand over the Poeschel reports, any such failure occurred in the context of Marshall's work as an attorney and advocate in the appellate/habeas proceedings. Marshall is entitled to absolute immunity for this activity.

b. Marshall's interviews of the child witnesses prior to the habeas evidentiary hearing.

On June 21, 2001, Wijsen filed a petition for a writ of habeas corpus with the Fifth Appellate District Court on Faulkner's behalf. The petition alleged that several of the trial witnesses had recanted their trial testimony. On October 10, 2001, the Appellate Court issued an order to show cause to the Kern County Superior Court why Faulkner's petition should not be granted. The Superior Court held an evidentiary hearing on June 17 and 18, 2002.

Prior to the evidentiary hearing, in early February 2002, Marshall interviewed all of the child witnesses in the company of California Department of Justice Special Agent Morales. ( See Pltf's Ex. R, Attch. E-R.) Marshall asserts that he conducted the interviews "for the sole and exclusive purpose of preparing for the hearing, including assessing the credibility of potential witnesses." (Marshall Decl. at ¶ 10.) During those interviews, Marshall concluded that "[i]t was clear they had either lied at trial or were subsequently lying about having fabricated their trial testimony . . . Nevertheless, because the jury had acquitted Faulkner of all counts relating to those two anyway, and because the counts of which he was convicted solely and independently related to the third alleged victim, Brandon, who remained steadfastly consistent in his own accounts, it was my good faith belief that the boy's testimony independently supported those convictions." ( Id.)

Plaintiff disputes Marshall's asserted "purpose" for the meetings, pointing to the content of the interviews conducted by Marshall. In particular, Plaintiff asserts that Marshall acted in "bad faith" when he "tried to get Brandon to change his testimony by oppressive questioning." Marshall asked Brandon whether Faulkner touched any of the children. When Brandon answered "No," Marshall attempted to rephrase the question as "Were you paying attention to what he . . ." when Brandon cut him off and said "No he didn't." Marshall then asked "You didn't see him do it or you weren't paying attention?" Brandon answered "He didn't." Marshall then asked "You didn't see him do it?" Brandon answered "I saw him but he didn't do it." Plaintiff asserts that "Marshall was attempting to get this boy to say what the girls had been denying for over two years." (Doc. 93, Pltf's Reply to State's Opp'n to Pltf's Mot. for Sum. J., at 4.) However, even accepting Plaintiff's theory about Marshall's intent, Marshall's questioning was a reasonable and necessary part of the process of preparing witnesses and the People's case for the evidentiary hearing. The interview was designed to probe the depth of Brandon's knowledge and observations. This falls squarely within the pattern of questioning in Cousin, the Fifth Circuit case cited with approval by the Ninth Circuit in Genzler. In Cousin, a prosecutor met with the witness "to tell [the witness] how he should testify." Even though this interview was arguably coercive, it was covered by absolute immunity because the interview was designed to prepare the witness to testify. Cousin, 325 F.3d at 633. Marshall's conduct during his interview of Brandon is protected by absolute immunity because he was actively preparing the witness for testimony in court. Genzler, 410 at 643. c. Bad faith allegations.

Finally, Plaintiff suggests that Marshall acted in "bad faith" when, despite having concluded during the interviews that Samantha and Breanna had lied, he "fail[ed] to acknowledge plaintiff's claims of illegal search, siezure, and wrongful prosecution following [the] opinion of the California 5th Appellate District Court . . ." and failed to withdraw the State's opposition to Plaintiff's post-trial motions. These are decisions on legal strategy Marshall made in the course of his role as a prosecutor and are therefore covered by absolute immunity, even if made in bad faith or with an improper motive.

Plaintiff repeatedly asserts that Marshall is liable because he acted in "bad faith." Plaintiff appears to make these arguments in the context of the qualified immunity standard, but to the extent that he asserts a "bad faith" exception to absolute immunity, no such exception exists. Imbler, 424 U.S. at 427 ("To be sure, [prosecutorial] immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system.") (emphasis added).

Defendant Marshall's motion for summary judgment as to all claims against him is GRANTED.

3. Absolute Immunity As Applied to Defendant Lockyer.

The claims against Lockyer have been dismissed because Plaintiff has not established any basis for personal liability against Lockyer. Even if this were not the case, Lockyer is entitled to prosecutorial immunity. Lockyer's only direct participation in the case is the fact that his name appears above the signature line of pleadings as attorney, filed and signed by Marshall as Lockyer's deputy. Where a prosecutor's involvement is "limited to the use of his title in the formal pleadings of the state criminal case," absolute immunity applies. Freeman on Behalf of the Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir. 1993). Plaintiff has offered no other evidence or legal grounds upon which to find otherwise. Defendant Lockyer's motion for summary judgment as to all claims against him is GRANTED.

4. Absolute Immunity As Applied to Defendant Brownlee.

Defendant Brownlee asserts that he is entitled to absolute immunity for his allegedly unlawful conduct. Plaintiff objects, asserting that Brownlee was acting in an investigatory capacity, rather than in his role as an advocate, when he allegedly violated Plaintiff's constitutional rights. The operative allegations against Brownlee are: (1) that he failed to disclose to Faulkner and/or act upon the potentially exculpatory evidence provided by Ms. Blankenship; (2) that he used coercive or suggestive tactics while interviewing the child witnesses prior to the criminal trial; and (3) that he ordered an investigator to conduct new interviews of the child witnesses after the conclusion of the criminal trial and then failed to disclose the content of those interviews to the appropriate authorities. The threshold inquiry is whether the activities in which Brownlee engaged are the type covered by absolute immunity under Genzler. a. Mary Blankenship's warnings to Brownlee of Potentially Perjurious Testimony.

The parties dispute whether and when Mary Blankenship informed Brownlee of her belief that one or more of the child witnesses might be lying. There is evidence that Ms. Blankenship warned Brownlee of her "doubts" both before and after the trial, although the exact timing of Ms. Blankenship's warning(s) is not clear from the record. (Pltf's Ex. A at 33, 43.) Brownlee denies ever having received such warnings. For the purposes of this motion, where disputed facts must be viewed in a light most favorable to the non-moving party, it must be assumed that Ms. Blankenship communicated these warnings to Brownlee, both before and after the trial.

Genzler controls whether absolute immunity applies in this case. The inquiry demands an examination of both the timing and the nature of Brownlee's interactions with Ms. Blankenship. In Genzler, the prosecutor was not protected by absolute immunity for acts that can be characterized as part of the "process of gathering information." Genzler, 410 F.3d at 642. In contrast, a prosecutor is protected by absolute immunity if he or she "is acting as an advocate by actively preparing the witness for testimony in court." Id. at 643.

(1) The pre-trial warnings.

The exact timing of Ms. Blankenship's purported pre-trial warning(s) to Brownlee is not clear. The only relevant evidence is the following excerpt from Ms. Blankenship's testimony:

Q: Ms. Blankenship, Mr. Marshall just asked you if you delayed a year before you told anyone of your doubts. Isn't it correct that you told Mr. Brownlee even before trial?

A: Yes, I did. I'm Sorry.

( Id. at 43.) Ms. Blankenship testified that she accompanied the girls to meetings with Brownlee in Brownlee's office on two or three occasions. (Pltf's Ex. A at 43.) It can be inferred from this evidence that she spoke with Brownlee at these meetings. No other pre-trial interactions between Ms. Blankenship and Brownlee are referenced in the record.

Under Genzler, these pre-trial witness interviews must be examined in the overall context of Brownlee's involvement in the prosecution. Brownlee was first assigned to handle Faulkner's prosecution one week before the preliminary hearing scheduled on December 14, 1999. Brownlee had no contact with either Deputy Fennel or Dixon or with any witness until the morning of the preliminary hearing. Just before that hearing, Brownlee spoke with Samantha Spoon about the incident. Brownlee asserts that he conducted this interview because he thought that she might need to testify at the hearing and he wanted to know what she would say.

With respect to timing, as in Genzler, where the prosecutor was not entitled to absolute immunity for interviews conducted prior to the probable cause hearing, the probable cause determination had not yet been made when Brownlee met with Samantha prior to the preliminary hearing. However, unlike Genzler, where the interviews took place several weeks prior to the preliminary hearing, Brownlee met with Samantha the same day, immediately prior to a judicial hearing, to prepare himself to present the People's case at that hearing. (Brownlee Decl. at ¶ 4.) In so doing, Brownlee was "acting as an advocate by actively preparing the witness for testimony in court," a function that is protected by absolute immunity. See Genzler, 410 at 643. Although it is a close call, Brownlee's conduct in this circumstance is best described as "organizing, evaluating, and marshaling []evidence in preparation for a pending trial [or adversarial hearing], in contrast to the police-like activity of acquiring evidence which might be used in a prosecution . . ." Id. at 639. Brownlee is entitled to absolute immunity for his interview of Samantha immediately prior to the preliminary hearing. Even if Ms. Blankenship warned him in the context of this interview of her belief that Samantha might not be telling the truth, absolute immunity shields Brownlee from civil liability for failure to disclose this potentially exculpatory evidence. See Broam, 320 F.3d at 1030.

Faulkner's trial was set for early May 2000. At some point "within days" of the trial (the exact date of the interviews appears nowhere in the record), Brownlee interviewed all of the child witnesses. The probable cause determination had already been made by an independent judge and the preliminary hearing concluded. Again, the circumstances suggest a close connection with the upcoming criminal trial. No contrary evidence has been submitted.

Even assuming that Ms. Blankenship did warn Brownlee during any of these pre-trial witness interviews that either or both of the girls might be lying, Brownlee is shielded by absolute prosecutorial immunity.

(2) The post-trial warnings.

The record is also unclear as to the timing of the purportedpost-trial warning(s). Ms. Blankenship testified that, after the trial, she thought the girls had probably lied and then called Brownlee to tell him as much.

The Court: . . . The question is, after the trial, what did you do because you thought the girls were probably lying, and the first thing you did is you called Brownlee?

The Witness: Correct.

* * *

Q: When did you do that? When did you call Mr. Brownlee in relation to the trial?

A: I talked to Mr. Brownlee after the trial about it also.

Q: How long after the trial is what am getting at. Do you know?

A: When I had called Mr. Brownlee's office to find out about the sentencing, and that's when I had told him what took place.

( Id. at 33.)

Ms. Blankenship also testified that she expressed similar doubts to a "lady from the District Attorney's Office," in September 2000. ( Id. at 44.)

Q: And you also testified — well, did you in fact talk, yourself, with the D.A. investigator in September of 2000?

A: I talked with her — with a lady from the District Attorney's Office.

Q: Did you express that same doubt to her?

A: I did.

But, Plaintiff does not name this "lady" as a defendant nor connect her to Defendant Brownlee in any way.

No precise time frame for this conversation is provided in the record. Ms. Blankenship's mention of the word "sentencing" suggests that this communication took place in close proximity to Plaintiff's sentencing hearing. Sentencing is a phase that is "intimately associated with the judicial phase of the criminal process," and is therefore protected by absolute immunity from civil liability. See Broam, 320 F.3d at 1028-29; see also Sadoski v. Mosley, 435 F.3d 1076 (9th Cir. 1996) (Gould, J., concurring) (prosecutors were absolutely immune for participation in re-sentencing and parole revocation proceedings).

b. Brownlee's alleged use of improperly suggestive interview techniques.

Faulkner also alleges that Brownlee used improperly suggestive interview techniques with Samantha. Specifically, Faulkner points to the following except from Ms. Blankenship's testimony:

Q: Do you recall Mr. Brownlee ever suggesting to Samantha answers?

A: Yes, I do.

Q: Did you ever hear him suggest to Samantha that something actually happened in a different way from what she had said?

A: Yes, I did.

Q: And then did Samantha then agree with Mr. Brownlee's version

Mr. Marshall: I am going to object to both Mr. Brownlee's suggestion and Samantha's responses as being hearsay.

But, it is undisputed that Brownlee's only direct interactions with Samantha occurred either immediately prior to the preliminary hearing or just prior to the trial itself. All of these meetings were in preparation for her potential testimony as a witness in judicial proceedings, were not investigatory in nature, and afford Brownlee absolute immunity. This immunity protects Brownlee even if he did tell Samantha "what she should say."

c. Brownlee's involvement in the preparation and disclosure of the Poeschel reports.

Faulkner was convicted in early May 2000, and was sentenced to prison in June 2000. In September 2000, Brownlee received information that one or more of the girls might be changing their trial testimony. Brownlee was not aware at that stage of the extent of the witnesses' intent to recant. Brownlee directed District Attorney Investigator Patricia Poeschel to interview the children. These interviews occurred in September, October, and November 2000. On November 21, 2000, Brownlee received reports from Poeschel (the Poeschel Reports) summarizing the interviews, which indicated that two of the girls said they lied about Faulkner grabbing Samantha. Brownlee claims that he immediately made a copy of the reports and sent them to the Public Defender's office that same day. The Public Defender, Leslie Greer, admits having received the reports from Brownlee and asserts that she forwarded them on to Wijsen. Faulkner asserts, however, that the reports were never given to Wijsen and has presented some proof to support this assertion, including the circumstantial evidence that Wijsen did not reference the reports in his appellate brief or the initial habeas petition. For the purposes of this motion, Faulkner's version of events must be credited. No explanation is provided for any failure of Wijsen to receive the Poeschel Reports Greer sent to him.

The threshold inquiry is whether, under the Genzler functional analysis, Brownlee's relevant conduct is shielded by absolute immunity. The Ninth Circuit has extended the protection of absolute immunity to a prosecutor's acts before, during, and after trial:

Because by hypothesis resentful defendants initiate suits irrationally or for purposes of harassment, they are just as likely to ascribe unconstitutional purposes to the prosecutor's post-trial acts as to his acts before and during trial. . . .

Demery, 735 F.2d at 1144-45 (internal citations and quotations omitted).

Like allegations of misconduct during the trial preparation stage, allegations of misconduct in a prosecutor's post-trial handling of a case can generally be corrected without resort to a civil trial for damages. This claim . . . is the type that the Supreme Court, in its wisdom, wanted to prevent and recognized would be better handled by various post-trial remedies. . . .

Id.

However, absolute immunity only attaches to a prosecutor's post-trial activities that are related to his or her role as an advocate. In Houston v. Partee, 978 F.2d 362 (7th Cir. 1992), the Seventh Circuit declined to extend absolute immunity under facts strikingly similar to this case. In that case, two individuals, Houston and Brown, were convicted of murder. While their appeals were pending, a cooperating witness told law enforcement officers that neither Houston nor Brown had committed the murders. The witness specifically stated that other individuals were responsible for the murder. Those two other witnesses subsequently confessed to law enforcement officers. None of this information was disclosed to Houston or Brown until, after they learned of the confessions on their own, and their defense attorneys then confronted the prosecutors.

The Houston court held that the prosecutors were not absolutely immune from liability under the circumstances, in part because the appeal was being handled by different government attorneys at the time the prosecutors learned of the other witnesses' confessions. In reaching this conclusion, the Seventh Circuit engaged in a lengthy examination of the historical bases for and purposes of prosecutorial immunity before determining that absolute immunity was not appropriate under those circumstances. See also Spurlock v. Thompson 330 F.3d 791, 799 (6th Cir. 2003) (prosecutor not entitled to absolute immunity for allegedly unlawful conduct more than a year after completion of criminal trial). In contrast, where a prosecutor is still handling post conviction motions and/or the direct appeal, absolute immunity applies. Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994).

Here, by the time Brownlee learned of the recantations in September 2000, Faulkner had already filed his notice of appeal (in June 2000), and appellate counsel had been appointed (in August 2000). By the end of September 2000, Marshall had been assigned to the case. Accordingly, when Brownlee received the Poeshel reports in November and disclosed them to Leslie Greer, he was no longer prosecuting the case and absolute immunity would not apply to this particular conduct.

Defendant Brownlee's motion for summary judgment on absolute immunity grounds is GRANTED as to all the factual allegations against him, except that the motion is DENIED with respect to his involvement in the preparation and disclosure of the Poeschel reports. Whether this remaining allegation against Brownlee is sufficient to overcome qualified immunity is discussed below.

5. Absolute Immunity of Defendant Jagels.

As discussed, Plaintiff has failed to elicit any proof in support of a Monell claim against the County and summary judgment has been granted to Defendant Jagels on any official capacity claims against him. Nor has Plaintiff established that Defendant Jagels personally participated in or ratified with knowledge any alleged constitutional violations, entitling Jagels to summary judgment on any individual capacity claims against him. Even if Plaintiff could establish an individual capacity claim against Jagels, he would be entitled to absolute immunity, as his deputy did no more than sign under the authority of the District Attorney's title. Freeman, 708 F.2d at 443. There is no evidence to show Jagels knew of, directed, participated in, or established and implemented a policy that made him responsible for Brownlee's conduct. F. Qualified Immunity Applied to the Remaining Claims.

The County and the State move for summary judgment on behalf of all the remaining individual defendants on the grounds that all are entitled to qualified immunity. Plaintiff cross-moves for summary judgment on the ground that defendants' actions wrongfully deprived plaintiff of his constitutional rights.

1. Qualified Immunity Legal Framework.

The standard for qualified immunity implicates the legal bases for the alleged constitutional violations. Deciding qualified immunity entails a two-step analysis. First, a court must ask whether a constitutional violation occurred at all. If the answer to this question is yes, the court must then inquire whether the right violated was "clearly established" by asking whether a reasonable officer could believe that the officer's actions were lawful. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

The traditional summary judgment approach should be used in applying the first step of the Saucier analysis:

A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [official's] conduct violated a constitutional right? Where the facts are disputed, their resolution and determinations of credibility are manifestly the province of a jury.

Wall v. County of Orange, 364 F.3d 1107, 1110-1111 (9th Cir. 2004) (internal citations and quotations omitted). In the second step, the court asks whether it would be clear to a reasonable official that the official's conduct was unlawful in the situation confronted. Although this inquiry is primarily a legal one, where the reasonableness of the officer's belief that his conduct was lawful "depends on the resolution of disputed issues of fact . . . summary judgment is not appropriate." Wilkins v. City of Oakland, 364 F.3d 949, 1110-11 (9th. Cir. 2003) (citing Saucier, 533 U.S. at 216 (Ginsburg J., concurring)).

Under Saucier, the first question is whether "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right." Here, Plaintiff alleges:

(1) that investigators and prosecutors fabricated evidence by either coercing the child witnesses into making false statements or by using improper investigative techniques;

(2) that the prosecution was warned both before and during the criminal trial that several of the child witnesses might not be telling the truth, but did nothing with this knowledge; and

(3) that both County and State prosecutors failed to timely disclose exculpatory evidence.

Some of these claims pertain only to Defendants who are protected by absolute immunity. Defendants Marshall, Lockyer, Jagels, and Sparks are entitled to summary judgment on absolute immunity grounds. Defendant Brownlee is protected by absolute immunity for almost all of his actions. The sole exception is that he is protected only by qualified immunity for his conduct regarding the disclosure of the Poeschel reports. Defendants Fennell and Dixon are likewise protected only by qualified immunity. Accordingly, the remaining claims are:

(1) that Defendants Fennel and Dixon fabricated evidence by either coercing the child witnesses into making false statements or by using improper investigative techniques;

(2) that Defendant Brownlee learned after the trial that several of the child witnesses intended to recant their trial testimony, but did not timely or adequately disclose the information to Plaintiff's counsel.

2. Deliberate Fabrication/Knowingly Pursuing Prosecution of an Innocent Defendant.

The first allegation is whether Defendants Fennel and Dixon used improper investigative techniques, falsified evidence, and/or pursued Plaintiff's prosecution, despite awareness of his innocence.

These claims are controlled by a line of cases beginning with Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001), in which the Ninth Circuit has closely circumscribed the range of faulty-investigation law enforcement claims which may form the basis for Section 1983 liability in the conduct of child abuse investigations and interrogations. In Devereaux, a foster parent who had been accused of sexual misconduct with his foster children brought a Section 1983 action against various government entities and law enforcement officials, alleging that defendants manipulated and coerced the children into giving false evidence against him, and withheld and ignored exculpatory evidence. Id. Defendants asserted qualified immunity, and the district court granted summary judgment. Id. Applying the Saucier two-step qualified immunity approach, the Ninth Circuit ruled 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.

Id. Instead, the Ninth Circuit requires that a plaintiff:

must, at a minimum, point to evidence that supports at least one of the following two propositions: (1) [d]efendants continued their investigation of [plaintiff] despite the fact that they knew or should have known that he was innocent; or (2) [d]efendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.

Id. Deliberate falsification of evidence is required; mere faulty investigative techniques will not suffice to state a Section 1983 due process claim. Id.

In Cunningham v. City of Wenatchee, 345 F.3d 802 (9th Cir. 2003), the Ninth Circuit ruled that "[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, 345 F.3d at 812. Plaintiff argued that the officer acted in bad faith because he failed to document his interrogations and did not keep a record of the two children's statements denying sexual abuse. The Ninth Circuit rejected this argument, on the grounds that the officer "likely believed his tactics were lawful." Id. Accord Gausvik v. Perez, 345 F.3d 813, 318 (9th Cir. 2003).

Under the first step of the Saucier analysis, the court must analyze whether the undisputed facts, together with the disputed facts viewed in a light most favorable to Plaintiff, show the Defendants' conduct establish a constitutional violation under Devereaux.

The theory of Plaintiff's case against Fennel or Dixon is that their "failure to investigate the outlandish stories of the minor witnesses deprived plaintiff of his right to be free from unlawful seizure and of due process." (Doc. 70, at 15 (emphasis added).)

Defendants' fail[ed] to conduct an investigation at the scene of plaintiff's arrest, when all physically obvious evidence pointed to the impossibility of a factual scenario as alleged by minor witnesses Samantha Spoon and Breanna Blanketship. The two eight year old witnesses informed Defendant Sheriff Deputies Fennel and Dixon that Faulkner "picked up one of the girls and placed her on the handlebars of his bicycle while it sat on its kick-stand." [Exhibit E, to County MSJ, p. 13 of 19] Fennell then reported that Samantha "jumped off the bicycle and ran. Faulkner attempted to put Brandon on the bicycle (illegible), but he was able to pull away and run." [Exhibit E, to County MSJ, p. 13 of 19]. Any person familiar with the weight and balance of a bicycle on its kickstand, and especially a Sheriff's Deputy familiar with chasing suspects on bicycles and making arrests in various factual situations knows that this factual scenario is impossible.

Defendants' assertion that the witness lied, and therefore Defendant Sheriff Deputies Fennel and Dixon should be absolved of liability for their conduct at the scene of the arrest, is a non sequitur. Defendants Fennell and Dixon were trained law officers sent to the scene to ascertain if a crime had been committed. Mere allegations, illogical in nature, do not provide probable cause to arrest anyone without a proper investigation. [Exhibit E, to County MSJ, incident report; Plaintiff's Exhibit "O," Wijsen letter; Plaintiff's Exhibit "C", Poeschel Reports]

( Id. at 13-14.)

These allegations are controlled by the Devereaux line of cases. To overcome qualified immunity in a faulty investigation case, Plaintiff must "point to evidence that supports at least one of the following two propositions: (1) [d]efendants continued their investigation of [plaintiff] despite the fact that they knew or should have known that he was innocent; or (2) [d]efendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information."

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.

263 F.3d 1070.

Here, Plaintiff's only argument relevant to Deputies Fennel and Dixon is that it is impossible for a child to sit on the handlebars of a bike while that bike leaned on its kickstand, and no reasonable law enforcement investigator could accept the assertion as true. Even assuming the truth of this assertion, this does not provide a sufficient factual basis to defeat qualified immunity. It is far from "clearly established" that such a scenario is impossible and a reasonable officer could believe that Defendants Fennel and Dixon's actions were lawful. See Saucier v. Katz, 533 U.S. 194, 201 (2001). To the extent that the complaint also impliedly asserts a Devereaux violation against Defendant Brownlee, it is difficult to imagine how the only conduct for which Brownlee is not protected by absolute immunity — his alleged failure to timely and properly disclose the Poeschel reports — fits into the Devereaux framework. Arguendo, the State's continued insistence upon Plaintiff's guilt throughout the appeal could be interpreted as "continu[ing] [an] investigation of [plaintiff] despite the fact that they knew or should have known that he was innocent . . .," which is prohibited by Devereaux. But, it was Marshall, not Brownlee, who made the decision to defend the conviction on appeal and habeas corpus. As discussed, Marshall is absolutely immune for his conduct in post-trial proceedings. The more plausible basis for Brownlee's liability is the failure to disclose/ Brady claim, discussed below.

The County makes the obvious counterpoint: "Doubtless, thousands of children [who ride on bike handlebars] would dispute this claim." (County's Reply at 10 n. 6).

3. Failure to Disclose Exculpatory Evidence.

The only remaining claim is the allegation that Defendant Brownlee failed to adequately disclose the existence of the Poeschel reports after trial. Under Saucier, the inquiry is whether the undisputed facts, together with the disputed facts viewed in the light most favorable to Plaintiff, indicate that Brownlee violated a clearly established constitutional right. The first question is whether the facts show the existence of a constitutional violation. In this case, this first inquiry is complex. a. Is there any constitutional duty to disclose evidence obtained after conviction and sentencing?

A threshold question is whether Brownlee was under anyconstitutional duty to disclose the evidence in question to anyone at all, given that the evidence was discovered after Plaintiff's trial and conviction.

Plaintiff maintains that Brownlee was under a "continuing duty pursuant to Brady v. Maryland, 373 U.S. 83 (1963) to disclose any "newly acquired" exculpatory evidence to Faulkner's counsel and to the Court." (Doc. 70, Pltf's Opp'n to Kern's Mot., at 9.) In support of this proposition, Plaintiff cites Pennsylvania v. Ritchie, 480 U.S. 39 (1987), Imbler v. Pachman, 424 U.S. 409, 427 n. 25 (1976), Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir. 1992). Neither Ritchie nor Imbler support Plaintiff's contention. Ritchie concerned evidence known to the prosecution prior to trial. 480 U.S. at 43-47. The cited passage from Imbler, footnote 25, suggests that any continuing duty to disclose exculpatory evidence discovered post trial is an ethical responsibility, not a constitutional one:

The possibility of personal liability also could dampen the prosecutor's exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial this duty is enforced by the requirements of due process, but after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA Code of Professional Responsibility s EC 7-13 (1969); ABA Standards, supra, s 3.11. Indeed, the record in this case suggests that respondent's recognition of this duty led to the post-conviction hearing which in turn resulted ultimately in the District Court's granting of the writ of habeas corpus.

424 U.S. at 427 n. 25.

Thomas directly support Plaintiff's assertion. Thomas concerned a state prisoner pursuing federal habeas relief from a sexual assault conviction. Thomas asserted several grounds for habeas relief, including that the state suppressed a semen sample which would have exonerated him of the sexual assault charge. All of his claims were procedurally defaulted in state court and he was unable to demonstrate cause for his procedural defaults. Consequently, the Ninth Circuit reasoned that the habeas claims would only be cognizable in federal court if Thomas could establish a "colorable showing of factual innocence." Noting that the "semen sample, or tests thereof, might enable him to make such a showing," the Ninth Circuit reasoned that

[T]he state is under an obligation to come forward with any exculpatory semen evidence in its possession. See Brady v. Maryland, 373 U.S. 83, 87 (1963). We do not refer to the state's past duty to turn over exculpatory evidence at trial, but to its present duty to turn over exculpatory evidence relevant to the instant habeas corpus proceeding. Thomas has alleged that the state possesses evidence which would demonstrate his innocence and revive an otherwise defaulted ground for issuing a writ. Under the circumstances, fairness requires that on remand the state come forward with any exculpatory evidence it possesses. If no such evidence exists, the state need only advise the district court of that fact.

979 F.2d 749-50 (emphasis added) (parallel citations omitted).

The County points to a district court case, Hankison v. Board of Prison Terms, 768 F. Supp. 720, 722 (N.D. Cal. 1991), decided one year prior to Thomas, in support of its assertion that "[w]hen the prosecution does not learn of the exculpatory evidence until after the trial, there is no Brady error for failing to provide it to the defense." In Hankison, a habeas case, the petitioner challenged his conviction on the ground that prosecutors failed to disclose a pre-verdict witness recantation to his defense counsel. The district court, after an evidentiary hearing, found that the prosecution was unaware of the recantation until after the verdict was announced. Id. at 722. The district court reasoned that habeas relief was not warranted on Brady grounds because, although "[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process . . . [a] Brady error cannot occur where the prosecution and law enforcement do not possess and are unaware of the favorable evidence." Id. In light of the clear pronouncement in Thomas, Hankison is not particularly persuasive. Hankison's central focus was whether the trial comported with due process. Here, in contrast, the issue is whether Brownlee was under any obligation to disclose exculpatory evidence discovered after trial. Thomas answers this question in the affirmative.

Although Thomas establishes a duty to disclose information discovered after trial, the existence of this duty does not end the inquiry into the nature of the constitutional right as it must be applied in a civil lawsuit brought pursuant to section 1983.

b. What is the legal standard for a Brady claim brought under Section 1983?

In the context of the criminal process, "[t]here are three components of a true Brady violation: [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the state, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Also in the criminal context, Brady imposes a "no fault" obligation upon prosecutors to turn over exculpatory evidence. A prosecutor's withholding of exculpatory, material evidence is grounds for a new trial, whether the withholding was innocent, negligent, or intentional. See Brady v. Maryland, 373 U.S. 83, 87 (1963).

However, a series of cases have called into question whether a similar "no fault" standard applies in civil cases where liability is based upon a Brady violation. In Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003), where the plaintiff alleged that police officers failed to preserve and gather evidence that might have exonerated him, the Ninth Circuit imposed a bad faith requirement. The Ninth Circuit has never explicitly discussed whether a similar bad faith requirement applies to a true Brady violation (i.e., a case dealing with the purposeful (bad faith) suppression of exculpatory evidence already in the possession of the government).

The Fourth Circuit, in Jean v. Collins, 221 F.3d 656 (4th Cir. 2000), extended the bad faith requirement to a civil Brady claim where an officer negligently failed to turn over exculpatory evidence in his possession. Jean's reasoning is instructive. The Brady disclosure obligation is derived from the due process protections afforded by the Fourteenth Amendment. The Fourth Circuit reasoned that some form of intentional conduct is required to impose liability for a due process violation under § 1983.

[I]t would be impermissible to hold the police liable for due process violations under § 1983 where they have acted in good faith. In Daniels v. Williams, the Supreme Court stated "that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." 474 U.S. 327, 328 (1986). The Fourteenth Amendment mandates, "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Daniels holds that, as a matter of plain constitutional text, no "deprivation" occurs on account of official negligence. 474 U.S. at 330-33. Indeed, negligent conduct cannot by definition establish the "affirmative abuse of power" necessary to constitute a due process deprivation. See id. at 330-32. Under Daniels, then, police officer negligence or inadvertence in failing to turn over evidence cannot be actionable under § 1983.

The Jean court analogized the circumstances before it to Arizona v. Youngblood, 488 U.S. 51, 58 (1988), which concerned police officers who allegedly failed to preserve potentially exculpatory semen evidence.

The Youngblood Court held, however, that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 58.

While Youngblood dealt with the failure to preserve evidence, its principles are certainly applicable to the present situation. Here, as in Youngblood, the prosecutor and ultimately the defense allegedly failed to receive exculpatory evidence from the police. Here, as in Youngblood, the police officers' actions were alleged to constitute a due process violation. The Youngblood Court stressed its "unwillingness" to read the Due Process Clause to impose "on the police an undifferentiated and absolute duty" in that context. Id.

We similarly decline to impose a sweeping duty on police in the instant situation and note the obvious drawbacks of doing so. For instance, such a duty would widen the legal gulf between prosecutors and police to such an extent as to make scapegoats of police for every item of evidence discovered post-trial. Prosecutors plainly enjoy absolute immunity in the exercise of their prosecutorial duties, of which the disclosure of Brady material to the defense is clearly one. See Kalina v. Fletcher, 522 U.S. 118, 123-29 (1997); Burns v. Reed, 500 U.S. 478, 486 (1991); Imbler v. Pachtman, 424 U.S. 409, 413-16, 430-31 (1976). To confer on prosecutors absolute immunity while denying to police the right to argue even bona fides would multiply exponentially litigation against even conscientious officers.

Id. at 661 (parallel citations omitted).

Arguably, this case is distinguishable from Jean because Brownlee is in fact a prosecutor, not a police officer. There is a common characteristic of all the section 1983 Brady cases: the Defendants in such cases are always either investigators, see Ramirez v. County of Los Angeles, 397 F. Supp. 2d 1208, 1226-27 (C.D. Cal. 2005) (claim failed on other grounds), or prosecutors who were acting in their investigatory capacity, see Houston, 978 F.2d at 368 (claim survived absolute immunity challenge and was remanded for further proceedings). This is because prosecutors acting in their quasi-judicial capacity are absolutely immune from civil liability. See Imbler, 424 U.S. 409. The remaining Brady allegation in this case concerns acts taken by Brownlee outside the scope of his role as a prosecutor. Stripped of the protections afforded prosecutors, it is reasonable to apply to Brownlee the standard of law applicable to investigators. Plaintiff must establish more than mere negligence on Brownlee's part. See Daniels, 474 U.S. at 328 ("[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.").

The Ninth Circuit in Devereaux also cautions against the danger of allowing any Brady claim valid in the criminal context to translate into a civil liability claim: "a Brady violation cannot in itself support a deliberate-fabrication-of-evidence claim — if it did any prisoner with a successful Brady claim would be able to bring a § 1983 action against the prosecutor for deliberate falsification of evidence." 263 F.3d at 1079.

Here, it is undisputed that Brownlee turned the Poeschel Reports over to Leslie Greer, Plaintiff's trial counsel. (Greer Decl. at ¶ 6.) (It is also undisputed that he later turned the reports over to Defendant Marshall, the Assistant Attorney General assigned to handle the State's opposition Plaintiff's appeal and habeas petition. But this disclosure did not occur until December 21, 2001.) The inquiry turns to whether Brownlee's disclosure of the Poeschel reports to Greer satisfied his duty to disclose, or whether this act constituted an intentional (i.e., more than negligent) delay to deprive Plaintiff of his constitutional rights.

The only relevant factual issue that remains in dispute is whether Wijsen actually received the Poeschel Reports from Greer. This appears to implicate potential negligence on Greer's part, if she failed to timely provide the report to Wijsen.

Plaintiff argues that Brownlee was under a further duty to disclose the existence of the recantations directly to the court. Plaintiff, however, cites absolutely no authority for this proposition, nor has any been located. To the contrary, some authority suggests a prosecutor's Brady obligation may be met in a variety of ways that fall far short of providing direct notice of the evidence to a court. For example, a prosecutor may rely on an "open file policy" to comply with Brady, whereby defense counsel are permitted access to the prosecution's entire file. Strickler v. Greene, 527 U.S. 263 (1999).

The undisputed circumstances surrounding the recantations suggest why it may have been more provident for Brownlee to leave the decision as to whether to disclose the reports up to defense counsel. Around the same time that the witnesses began to recant, Plaintiff was sending letters to the families of at least some of the witnesses, offering them financial gain in exchange for recantations. Brownlee's November 21, 2000 letter to Greer discusses his belief that these letters cast doubt upon the import of the recantations. ( See Pltf's Ex. E.) Nevertheless, Brownlee provided the reports to Greer and left it up to her to let him "know if [she] would like to do anything about this." ( Id.)

That letter states:

Enclosed please find a number of reports from our investigations unit, as well as multiple letters from Faulkner to the parents of the victims.

It appears that the girls are recanting their story. However, it also appears that Brandon is sticking to his story. You might recall that the jury convicted on Brandon, acquitted on the girls.

While reading through the information, I noted that about the time Faulkner starts offering money to the family of the victim's [sic] is about the time the girls recanted their story. Interesting.

Let me know if you would like to do anything about this.

This belief is supported by a long line of cases holding that recantations should be viewed with suspicion. See Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997).

Plaintiff asserts that Brownlee also had an obligation to disclose the reports directly to Wijsen, Plaintiff's appellate counsel. By the time Brownlee disclosed the Poeschel reports to Greer on November 21, 2000, Wijsen was already actively involved in the appeal, having filed his opening appellate brief on September 25, 2000. Although there is moral authority in Plaintiff's argument, he has cited no legal authority that imposes a clear duty upon Brownlee to direct the information to appellate counsel nor has any been located.

There is no evidence in the record suggesting that Brownlee's disclosure of the Poechel reports to Greer was an unreasonable or intentionally deficient method of disclosure. The qualified immunity analysis need not proceed past the first step, as the facts to not establish a constitutional violation. Brownlee is entitled to qualified immunity for his conduct in connection with causing the preparation of and disclosure to Faulkner's defense lawyer of the Poeschel reports. Brownlee's motion for summary judgment on this remaining claim is GRANTED. G. Motion to Reinstate Defendant Greer.

Even if, arguendo, the record did establish a constitutional violation, the existence of a duty to disclose to someone other than Ms. Greer is far from the type of "clearly established" rule required to overcome qualified immunity. Here, to the contrary, a reasonable official could believe that Brownlee's disclosure to Greer was adequate under the circumstances.

The current lawsuit, filed in July 2004, initially named Kern County Deputy Public Defender Lesley Greer as a defendant. In March 2005, Deputy County Counsel Andrew Thompson and Plaintiff's counsel, Ellen Ellison, discussed the possible voluntary dismissal of Lesley Greer and others. Mr. Thompson represented that he knew of nothing that Ms. Greer had done that would impose liability upon her. Shortly thereafter, the parties stipulated to the dismissal of Greer with prejudice.

Faulkner now asserts that the dismissal was based upon Mr. Thompson's misrepresentations as to Greer's involvement and/or complicity in a Brady violation. Specifically, Faulkner asserts that there is evidence that Ms. Greer failed to pass the Poeschel Reports on to Mr. Faulkner's appellate attorney. Faulkner bases his motion to reinstate on Federal Rule of Civil Procedure 60(b), which provides:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation . . .

Plaintiff specifically invokes Rule 60(b)(3) and (b)(6), which allow for a judgment to be set aside because of "fraud, misrepresentation, or other misconduct of an adverse party," and for "any other reason justifying relief from the operation of the judgment," respectively.

Reinstating Greer as a defendant also implicates Federal Rule of Civil Procedure 15, which provides

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. . . .

Leave to amend should be "freely given," "[i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962). Here, substantial time has passed, discovery is closed, and the case has been pursued without Greer's participation. Even if Plaintiff satisfied the requirements for setting aside the dismissal with prejudice under Rule 60, amendment to add Greer as a defendant would be legally futile.

It is undisputed that Brownlee forwarded the Poeschel reports to Greer on November 21, 2000 and that Greer received them. Greer admits as much and Plaintiff does not dispute this. (Greer Decl. at ¶ 6.) Upon receipt of the reports, Greer asserts that she telephoned Wijsen immediately and informed him of the contents of the reports. ( Id.) Greer maintains that she then forwarded copies of the reports to Wijsen. Faulkner contends that Ms. Greer never forwarded the reports to Wijsen, a contention that is supported by some circumstantial evidence. For example, although the habeas petition filed by Wijsen on behalf of Mr. Faulkner on June 19, 2001 does indicate that Wijsen received information in September 2000 that several of the child witnesses intended to recant their testimony, Wijsen makes no reference to the Poeschel reports therein:

In September 2000, appellate counsel for petitioner received information alleging that Mary Blankenship, the mother of two key prosecutorial witnesses in the case agaoist petitioner, Samantha Spoon and Breanna Blankenship, had contacted the Kern County District Attorney's staff and advised it that her children had lied at trial about what had occurred between them and petitioner. Next[,] appellate counsel had it confirmed by Bakersfield Attorney James L. Faulkner [] that the two children had admitted to Mary Blankenship that their accusations against petitioner were a total fabrication and that the alleged attempted abduction and false imprisonment of Brandon McElroy was in fact nothing more than petitioner stopping Brandon and others from throwing rocks at him.

(Doc. 49, County's Opp'n to Mot. to Reinstate, Ex. 1 at 6.) Instead, the petition relies exclusively upon Smith's interviews of Brianna Blankenship and Samantha Spoon, in which both girls recant their trial testimony. For purposes of this motion, therefore, it is be assumed that Greer indeed did fail to turn the Poeschel reports over to Wijsen.

There is not an iota of evidence that Greer's failure was more than negligence. Such a failure does not expose Greer to civil liability under section 1983. At best, Plaintiff could maintain a professional malpractice suit against Greer, provided all of the prerequisites to such a suit were satisfied. But, given that all of the federal claims in this lawsuit have been resolved on summary judgment in favor of the Defendants, the exercise of supplemental jurisdiction over this remaining claim would likely be inappropriate. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction. . . .").

Plaintiff speculates that Greer may have conspired with Brownlee and/or others to violate Plaintiff's civil rights. In theory, such a claim could render a non-state actor, such as Ms. Greer, liable under section 1983. Here, however, Plaintiff offers nothing but conclusory allegations of conspiracy, asserting generally that Greer "joined in an effort to revise the facts regarding who was told of the Poeschel reports . . ." and that she "is apparently strongly motivat[ed] to aid Mr. Brownlee in an attempt to have met his duty under Brady . . . through her." (See Doc. 91, Reply to Mot. to Reinstate, at 4-5.) Apart from these conclusory allegations, however, Plaintiff offers absolutely no evidence of the existence of any such conspiracy.

H. Plaintiff's Argument that the California 5th Appellate District Opinion Precludes Further Litigation on the Issue of Materiality under Brady.

As discussed, Plaintiff's second state petition for a writ of habeas corpus was successful. In reaching the conclusion that the writ should be granted, the Fifth Appellate District used the term "material" in reference to the recanted evidence. Plaintiff now requests recognition of this ruling as collateral estoppel, and argues that the Defendants should be barred from relitigating the question of materiality for purposes of the Brady standard. Because no Brady claim survives summary judgment, this argument is moot.

VI. CONCLUSION

For the reasons set forth above:

(1) Defendants' motions for summary judgment are GRANTED as to all defendants on all claims;

(2) Plaintiff's motion for summary judgment is DENIED.

(3) Plaintiff's motion to reinstate dismissed defendant Greer is DENIED.

(4) Defendants' motions to bifurcate are DENIED AS MOOT.

Faulkner v. County of Kern

Summary

Opinion

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOCS. 42, 60 65), MOTION TO REINSTATE (DOC. 38), AND MOTION TO BIFURCATE (DOCS. 55 58)

I. INTRODUCTION

II. BACKGROUND

D. Conviction and Sentencing.

III. SUMMARY OF THE COMPLAINT

IV. STANDARD OF REVIEW

V. DISCUSSION

1. Section 1983.

3. Suits Against Government Officials.

4. Prosecutorial Immunity.

5. Qualified Immunity.

1. Plaintiff Has Not Established A Personal Capacity Claim Against Defendant Lockyer.

2. Plaintiff Has Not Established Personal Liability Claims Against Either Sheriff Sparks or District Attorney Jagels.

2. The County Cannot be Liable for the Official Acts of a County District Attorney in Preparation for a Prosecution or to Train Others To Prosecute.

3. Failure of Proof under Monell.

1. Applicable Legal Framework.

2. Absolute Immunity As Applied to Defendant Marshall.

3. Absolute Immunity As Applied to Defendant Lockyer.

4. Absolute Immunity As Applied to Defendant Brownlee.

5. Absolute Immunity of Defendant Jagels.

1. Qualified Immunity Legal Framework.

2. Deliberate Fabrication/Knowingly Pursuing Prosecution of an Innocent Defendant.

3. Failure to Disclose Exculpatory Evidence.

VI. CONCLUSION

SO ORDERED

Faulkner v. County of Kern

Faulkner v. County of Kern

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Faulkner v. County of Kern

Summary

Opinion

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOCS. 42, 60 65), MOTION TO REINSTATE (DOC. 38), AND MOTION TO BIFURCATE (DOCS. 55 58)

I. INTRODUCTION

II. BACKGROUND

D. Conviction and Sentencing.

III. SUMMARY OF THE COMPLAINT

IV. STANDARD OF REVIEW

V. DISCUSSION

1. Section 1983.

3. Suits Against Government Officials.

4. Prosecutorial Immunity.

5. Qualified Immunity.

1. Plaintiff Has Not Established A Personal Capacity Claim Against Defendant Lockyer.

2. Plaintiff Has Not Established Personal Liability Claims Against Either Sheriff Sparks or District Attorney Jagels.

2. The County Cannot be Liable for the Official Acts of a County District Attorney in Preparation for a Prosecution or to Train Others To Prosecute.

3. Failure of Proof under Monell.

1. Applicable Legal Framework.

2. Absolute Immunity As Applied to Defendant Marshall.

3. Absolute Immunity As Applied to Defendant Lockyer.

4. Absolute Immunity As Applied to Defendant Brownlee.

5. Absolute Immunity of Defendant Jagels.

1. Qualified Immunity Legal Framework.

2. Deliberate Fabrication/Knowingly Pursuing Prosecution of an Innocent Defendant.

3. Failure to Disclose Exculpatory Evidence.

VI. CONCLUSION

SO ORDERED

Faulkner v. County of Kern

Faulkner v. County of Kern

Case Details

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