                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


KELLY SOO PARK,                       No. 14-56655
        Plaintiff-Appellant,
                                        D.C. No.
             v.                  2:14-cv-00330-SJO-RZ

KAREN THOMPSON,
       Defendant-Appellee.               OPINION


      Appeal from the United States District Court
          for the Central District of California
       S. James Otero, District Judge, Presiding

        Argued and Submitted October 4, 2016
                Pasadena, California

                  Filed March 14, 2017

Before: Stephen Reinhardt, Ferdinand F. Fernandez, and
            John B. Owens, Circuit Judges.

              Opinion by Judge Reinhardt;
       Partial Concurrence and Partial Dissent by
                   Judge Fernandez
2                       PARK V. THOMPSON

                            SUMMARY*


                             Civil Rights

    The panel reversed the district court’s dismissal of a
complaint and remanded in an action against City of Santa
Monica Police Detective Karen Thompson and Doe
defendants alleging defendants violated and conspired to
violate plaintiff’s right to compulsory process and a fair trial
by intimidating and attempting to dissuade a key witness
from testifying on behalf of the defense.

    The panel held that plaintiff adequately alleged
misconduct by Thompson that rose to the level of substantial
interference with a defense witness in contravention of the
Compulsory Process Clause of the Sixth Amendment and the
Due Process Clause of the Fourteenth Amendment. The
panel further held that plaintiff adequately pleaded that
Thompson’s misconduct caused the witness to refuse to
testify. The fact that plaintiff was eventually acquitted did
not render the witness testimony immaterial, nor did it bar
plaintiff’s Section 1983 action stemming from violations of
her rights during the underlying criminal investigation and
prosecution. The panel concluded that the witness’s
testimony was material to plaintiff’s defense because
evidence of third-party culpability would have cast some
doubt on the government’s evidence at plaintiff’s trial.
Finally, the panel held that plaintiff pleaded sufficient facts to
state a plausible claim for civil conspiracy under Section
1983.

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    PARK V. THOMPSON                        3

     Concurring in part and dissenting in part, Judge
Fernandez stated that the complaint’s mere general pleading
that there was some sort of nexus between Thompson’s action
and the witness’s decision not to testify was conclusory and
insufficient. Judge Fernandez did not think that there was a
proper allegation of a substantive violation, and did not
believe that a conspiracy was effectively alleged. He agreed
with the majority that the issue of qualified immunity should
be remanded to the district court for its consideration in the
first instance.


                        COUNSEL

Becky S. James (argued) and Jessica W. Rosen, James &
Stewart LLP, Pacific Palisades, California, for Plaintiff-
Appellant.

Anthony P. Serritella (argued), Deputy City Attorney; Marsha
Jones Moutrie, City Attorney; Jeanette Schachtner, Chief
Deputy City Attorney; Santa Monica City Attorney’s Office,
Santa Monica, California, for Defendant-Appellee.
4                        PARK V. THOMPSON

                               OPINION

REINHARDT, Circuit Judge:

    Kelly Soo Park was tried by the state of California for the
murder of Juliana Redding. Before trial, the judge ruled that
she would not allow Park to present any evidence of third-
party culpability after Park’s key witness on that question,
Melissa Ayala, invoked her Fifth Amendment privilege and
refused to testify. Park was eventually acquitted of all
charges.

    Park then sued Detective Karen Thompson and Doe
Defendants under 42 U.S.C. § 1983. Park alleged in her first
claim that Thompson violated her constitutional rights to
compulsory process and a fair trial by intimidating and
attempting to dissuade Ayala from testifying on behalf of the
defense. Park asserted a second claim against Thompson and
Doe Defendants for conspiracy to violate her civil rights
under 42 U.S.C. § 1983 by orchestrating criminal charges
against Ayala with the intention that she invoke the Fifth
Amendment and refuse to testify on Park’s behalf.1 The
district court dismissed both causes of action for failure to
state a claim, and Park appeals.2



    1
      Although the two claims as alleged in the pleadings are intermingled
and overlapping, we treat them separately for purposes of this opinion. On
remand, the parties and the district court may decide to analyze them
together should that prove preferable.
    2
       The present appeal addresses the dismissal of Park’s amended
complaint, which she filed after the district court dismissed her original
complaint with leave to amend. For the sake of clarity, we hereinafter refer
to the amended complaint as “the complaint.”
                    PARK V. THOMPSON                        5

    This appeal presents several issues of law. First, we must
decide whether Park has adequately alleged misconduct by
Thompson that rises to the level of substantial interference
with a defense witness in contravention of the Compulsory
Process Clause of the Sixth Amendment and the Due Process
Clause of the Fourteenth Amendment. Because we hold that
Park has adequately alleged such misconduct, we must decide
a second issue: whether Park adequately pleads that
Thompson’s misconduct caused Ayala to refuse to testify. We
hold that Park has pleaded a sufficient causal connection
between Thompson’s misconduct and Ayala’s unavailability.
Third, we must consider whether Park nonetheless failed to
state a claim because Ayala’s purported testimony was not
favorable and material to her criminal defense. We hold that
the fact that Park was eventually acquitted does not render
Ayala’s testimony immaterial, nor does it bar Park’s Section
1983 action stemming from violations of her rights during
the underlying criminal investigation and prosecution.
Furthermore, we conclude that Ayala’s testimony was
material to Park’s defense because evidence of third-party
culpability would have cast some doubt on the government’s
evidence at Park’s trial. Finally, we must make similar
determinations with respect to Park’s conspiracy claims.
Here, we also hold the allegations sufficient.

    In view of the above, we reverse the district court’s
judgment and remand for further proceedings consistent with
this opinion.
6                         PARK V. THOMPSON

    FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

    On March 15, 2008, Juliana Redding was strangled to
death in her home in Santa Monica, California. Detective
Karen Thompson of the Santa Monica Police Department
(“SMPD”) was the lead investigator on the Redding case.
After a few months passed without any leads as to who was
responsible for Redding’s death, Detective Thompson
requested permission from SMPD to continue investigating
on her own time. She eventually matched DNA found on
Redding’s body to Park. The Los Angeles County District
Attorney’s Office (“District Attorney”) consequently charged
Park with Redding’s murder.

    Park’s murder trial was set for May of 2013. As part of
her criminal defense, Park sought to introduce evidence that
Redding’s killer was actually John Gilmore, the victim’s
boyfriend at the time of her death. Gilmore had a history of
domestic violence and had previously assaulted Redding.3




     3
       Most of the facts set forth in this section are historical and not likely
to be a subject of dispute. Others may be disputed, but with regard to the
first claim, all are adequately pleaded in the complaint and thus sufficient
to defeat Thompson’s motion to dismiss. For purposes of this opinion
only, we deem them all to be true. We consider separately the facts that
relate to the conspiracy claim and are principally alleged on information
and belief. As to that claim, we conclude that under all the circumstances,
the allegations, with all the inferences that must be drawn in Park’s favor,
are sufficient to plead a plausible claim for conspiracy. Thus we assume
those facts to be true as well, but again solely for the purpose of the
motion to dismiss.
                          PARK V. THOMPSON                                   7

     On January 31, 2013, Park’s investigator interviewed
Gilmore’s former girlfriend, Melissa Ayala. During that
interview, Ayala told the investigator that Gilmore had been
violent toward her and had choked her on at least three
occasions. According to Ayala, the first of these incidents
occurred after Ayala brought up Redding’s death and accused
Gilmore of murdering Redding. Before choking Ayala,
Gilmore responded, “You want to see how she [Redding]
felt?” On the second occasion, after Ayala again accused
Gilmore of murdering Redding, he stated, while choking
Ayala, that he was “[g]oing to show [Ayala] how [Redding]
felt.” Gilmore was convicted of domestic violence against
Ayala. During the interview with Park’s investigator, Ayala
said she was afraid of Gilmore, but she agreed to testify about
his violent behavior and the statements he made about
Redding’s death.

    After learning of this potentially exculpatory evidence,
Park gave notice to the District Attorney of her intention to
call Ayala as a defense witness at trial. Detective Thompson
then contacted Ayala and attempted to dissuade her from
testifying for the defense. Among other things, Thompson
allegedly told Ayala that Gilmore–who had physically abused
Ayala in the past–was “really upset” about her statements.
Park also alleges that Thompson knowingly made false
representations to Ayala about the nature of the evidence
against Park.4 In addition, Thompson allegedly told Ayala,
“[Y]ou don’t have to talk to them [defense investigators] if


    4
      For example, Thompson told Ayala that the police had found “blood
on the front door handle . . . so the killer [Plaintiff] was injured during the
struggle and she left her blood DNA on the door handle.” A transcript of
the phone call may be found at pages 407–432 of the excerpts of record.
8                   PARK V. THOMPSON

you don’t want to . . . [I]f they call you, you don’t even need
to call back. . . . You’re not under any obligation to do
anything.”.

    Detective Thompson allegedly admitted that she “had not
spoken to Ms. Ayala for investigatory purposes,” but rather
had called Ayala only to “repair the damage the Private
Investigators had done to her relationship [with Gilmore].”
After speaking with Detective Thompson, Ayala refused any
further contact with Park’s investigators, although prior to
that conversation she had cooperated fully with them. Also,
after the conversation, she reneged on her commitment to
testify as a witness on Park’s behalf.

    On information and belief, Park alleges that Thompson
and/or Defendant Does, at Thompson’s instigation, later
spoke with the El Segundo Police Department about filing
charges against Ayala for assault and criminal threats against
Gilmore based on an incident that had occurred during the
previous year. Park alleges that Detective Thompson and/or
Defendant Does told the El Segundo Police Department that
it was important to file charges against Ayala as soon as
possible because the charges would cause her to invoke the
Fifth Amendment, thereby precluding her from testifying
about Gilmore’s statements. Finally, Park alleges that as a
result of this conversation, the District Attorney charged
Ayala with felony conspiracy, assault, and criminal threats a
few weeks before Park’s scheduled trial.

    On May 9, 2013, Ayala appeared in court pursuant to
Park’s subpoena to testify at trial. The Deputy District
Attorney informed Ayala’s defense attorney that if he did not
instruct Ayala to invoke her Fifth Amendment right against
self-incrimination, then she would move to “recuse” him.
                        PARK V. THOMPSON                              9

Ayala invoked her Fifth Amendment right and declined to
testify.5 After Ayala refused to testify, the judge presiding
over the criminal case precluded the presentation of any
evidence relating to Park’s third-party culpability defense.

    Park was tried and acquitted of all criminal charges.
Park’s defense counsel elicited favorable testimony from the
prosecution’s DNA expert, who testified that Park’s DNA
could have been transferred to Redding’s body by the actual
killer when he wiped down the apartment to eliminate
fingerprints or DNA evidence. Park alleges that even though
she was ultimately acquitted, her acquittal was far less certain
in the absence of Ayala’s testimony. Without that testimony,
Park was precluded from presenting evidence of third party
culpability at trial and was limited to presenting solely a
failure of proof defense.

II. Procedural History

    Park filed her complaint in district court asserting two
causes of action against Detective Thompson and Defendants
Does 1–10: (1) deprivation of civil rights, 42 U.S.C. § 1983,
by violation of the Sixth Amendment’s Compulsory Process
Clause and denial of her right to a fair trial under the Due
Process Clause of the Fourteenth Amendment; and (2)




    5
      Park’s complaint also alleges that Detective Thompson interfered
with two other witnesses, Park’s associate Ronnie Case and Park’s fiancé
(now husband), Thomas Chronister. The district court decision does not
mention these allegations.
10                         PARK V. THOMPSON

conspiracy to violate civil rights, 42 U.S.C.§ 1983, alleging
violation of the same two constitutional rights.6

    The district court granted Detective Thompson’s motion
to dismiss the complaint without leave to amend. With
respect to Park’s claim against Thompson individually: first,
the district court’s opinion was not entirely clear as to
whether the district judge held that Park had not adequately
alleged that Thompson’s conduct constituted substantial
interference. Second, the district court concluded that Park
had “not pleaded sufficient facts leading to a reasonable
inference that it was Defendant’s alleged persuasion that
caused Ayala not to testify.” Third, the district court
concluded that the complaint failed to establish that Ayala’s
testimony would have been “material” to Park’s third party
culpability defense. The district judge reasoned that because
Park would have obtained, and did obtain, the same result
(acquittal), regardless of whether Ayala’s testimony was
presented to the jury, her Section 1983 claims were
precluded. In addition, because Ayala’s testimony was “not
actually ‘exculpatory evidence,’” the district judge concluded
that its exclusion did not materially prejudice Park’s defense.
For the same reasons, as well as others, the district judge
dismissed Park’s conspiracy claim without leave to amend.7


     6
       Park’s original complaint also asserted a cause of action for
declaratory relief, but she later voluntarily dismissed this claim. This
appeal deals only with Park’s Section 1983 claim against Thompson
individually and her conspiracy claim against Thompson and others.
     7
       Despite the fact that Park’s complaint pleads a claim for civil
conspiracy under Section 1983, the district court erroneously construed
her conspiracy claim as a Section 1985 claim, apparently on the
assumption that conspiracy claims must be brought under that section. The
law is to the contrary. “[I]t is permissible to state a civil cause of action for
                         PARK V. THOMPSON                                11

   Park appeals the district court’s dismissal of her claim
against Thompson individually and her conspiracy claim
against Thompson and Doe Defendants.

                   STANDARD OF REVIEW

    We review de novo a district court’s dismissal for failure
to state a claim under Rule 12(b)(6). Lee v. City of Los
Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We accept the
plaintiff’s allegations as true and view them in the light most
favorable to her. New Mexico State Inv. Council v. Ernst &
Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011).
“Conclusory allegations of law . . . are insufficient to defeat
a motion to dismiss.” Lee, 250 F.3d at 679. Moreover,
dismissal is appropriate if the complaint fails to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “If there are two
alternative explanations, one advanced by defendant and the
other advanced by plaintiff, both of which are plausible,
plaintiff’s complaint survives a motion to dismiss under Rule
12(b)(6).” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).




conspiracy, based on § 1983.” Cohen v. Norris, 300 F.2d 24, 27 (9th Cir.
1962). “Hence, the fact that conspiracy is alleged here does not mean that
the plaintiff is invoking § 1985(3).” Id. The district court was incorrect to
treat Park’s conspiracy claim as a Section 1985 claim, given that she
pleaded this claim under Section 1983 as permitted by our precedents and
did not allege any “racially or otherwise ‘invidiously discriminatory
animus’ behind the conspirator’s action” as required under Section
1985(2), (3). Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see
also Bretz v. Kelman, 773 F.2d 1026, 1029–30 (9th Cir. 1985) (“[A]n
allegation of class-based animus is an essential requirement of a claim
under the second clause of § 1985(2).”).
12                       PARK V. THOMPSON

                            DISCUSSION

I. Section 1983 Claim for Violation of Sixth Amendment
   Right to Compulsory Process and Fourteenth
   Amendment Right to a Fair Trial

    “To make out a cause of action under Section 1983, [the]
plaintiff[] must plead that (1) the defendant[] acting under
color of state law (2) deprived plaintiff[] of rights secured by
the Constitution or federal statutes.” Williams v. California,
764 F.3d 1002, 1009 (9th Cir. 2014) (internal quotation marks
omitted). In the present case, it is undisputed that Detective
Thompson was acting under color of state law. Consequently,
Park’s Section 1983 claim must be allowed to proceed if she
pleaded sufficient facts to state a claim for violation of her
constitutional rights under the Sixth and Fourteenth
Amendments.8

    The Compulsory Process Clause of the Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have compulsory process for obtaining
witnesses in his favor.” U.S. Const. amend VI. The right to
compulsory process encompasses “[t]he right to offer the


     8
       The analysis under the Sixth and Fourteenth Amendments is “nearly
identical.” United States v. Bohn, 622 F.3d 1129, 1137 n.5 (9th Cir. 2010);
see also United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982)
(“Having borrowed much of our reasoning with respect to the Compulsory
Process Clause of the Sixth Amendment from cases involving the Due
Process Clause of the Fifth Amendment, we have little difficulty holding
that at least the same materiality requirement obtains with respect to a due
process claim.”). “Therefore, we do not unduly concern ourselves with
drawing fine distinctions between cases interpreting the Sixth Amendment
Compulsory Process Clause and those interpreting the . . . Due Process
Clause.” United States v. Juan, 704 F.3d 1137, 1141 n.1 (9th Cir. 2013).
                     PARK V. THOMPSON                         13

testimony of witnesses, and to compel their attendance, if
necessary.” Washington v. Texas, 388 U.S. 14, 18–19 (1967).
As “a fundamental element of due process of law,” the right
to compulsory process is incorporated against the states
through the Due Process Clause of the Fourteenth
Amendment. See id. at 19, 20.

    The Supreme Court has established that the government
violates due process when its conduct “effectively dr[ives a]
witness off the stand.” Webb v. Texas, 409 U.S. 95, 98 (1972)
(per curiam) (holding right to present a defense was violated
when the trial judge singled out and admonished a defense
witness about the risks of perjury in “unnecessarily strong
terms”). We have further explained that, under Webb, “[i]t is
well established that ‘substantial government interference
with a defense witness’s free and unhampered choice to
testify amounts to a violation of due process.’” Ayala v.
Chappell, 829 F.3d 1081, 1111 (9th Cir. 2016) (quoting Earp
v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005)). Although
Webb dealt only with judicial misconduct, wrongful conduct
by prosecutors or law enforcement officers can also constitute
“substantial government interference” with a defense
witness’s choice to testify. See, e.g., United States v. Vavages,
151 F.3d 1185, 1189 (9th Cir. 1998) (“[T]he conduct of
prosecutors, like the conduct of judges, is unquestionably
governed by Webb.”); United States v. Little, 753 F.2d 1420,
1439–40 (9th Cir. 1984) (analyzing claim of defense witness
intimidation by IRS agents); see also Ayala, 829 F.3d at 1111
(explaining that allegations of witness intimidation by
detective, taken as true, would amount to constitutional
violation).

  The Supreme Court has also made clear that “the Sixth
Amendment does not by its terms grant to a criminal
14                  PARK V. THOMPSON

defendant the right to secure the attendance and testimony of
any and all witnesses,” but only “witnesses in his favor.”
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)
(emphasis in original). Consequently, even where there may
have been governmental misconduct, a criminal defendant
cannot establish a violation of his compulsory process right
unless he “make[s] some plausible showing” of how the
potential witness’s “testimony would have been both material
and favorable to his defense.” Id.; see also Cacoperdo v.
Demosthenes, 37 F.3d 504, 509 (9th Cir. 1994) (holding Sixth
Amendment witness interference claim fails without showing
of relevance and materiality).

     To state a claim for violation of her fair trial and
compulsory process rights, Park must therefore adequately
plead (1) that Thompson’s alleged conduct amounts to
“substantial government interference” with a defense witness;
(2) that Thompson’s conduct caused Ayala not to testify; and
(3) that Ayala’s testimony would have been favorable and
material. As we have explained previously, because we are
reviewing a motion to dismiss, we treat Park’s allegations as
if they were true and draw all inferences in her favor for the
limited purpose of this opinion. See Arizona Students’ Ass’n
v. Arizona Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016).
In this light, we conclude that Park has adequately pled each
of the three requisite elements.

1. Substantial Interference

    To make out a claim against Thompson, Park must show
not only that Thompson engaged in misconduct, but also that
such misconduct was causally connected to Ayala’s refusal to
testify.
                         PARK V. THOMPSON                               15

    a. Misconduct

    The “substantial interference inquiry is extremely fact
specific” and requires an evaluation of the totality of the
circumstances. United States v. Juan, 704 F.3d 1137, 1142
(9th Cir. 2013). It constitutes substantial misconduct for a
prosecutor or a law enforcement officer to “intimidate[] or
harass[] the witness to discourage the witness from
testifying.” Bohn, 622 F.3d at 1138 (quoting Williams v.
Woodford, 384 F.3d 567, 601 (9th Cir. 2004); see also Ayala,
829 F.3d at 1111 (explaining that it could amount to
substantial interference with witnesses if it were proved that
detective “threatened, coerced, manipulated, and/or
intimidated potential and actual witnesses,” including by
threatening to investigate witness’s wife for smuggling drugs
into prison). Although it is permissible for law enforcement
to contact potential witnesses before trial for investigatory
purposes, see Little, 753 F.2d at 1440, we have cautioned that
“abuses can easily result when officials elect to inform
potential witnesses of their right not to speak with defense
counsel.” Cacoperdo, 37 F.3d at 509 (internal quotation
marks omitted).

    In the present case, Detective Thompson contacted Ayala
after Park gave notice to the District Attorney of her intention
to use Ayala as a defense witness at her criminal trial.9
During the course of the phone conversation, Thompson told


    9
       A simple, investigatory phone call to a potential witness does not
amount to misconduct, see Little, 753 F.2d at 1440, but Detective
Thompson did not call Ayala for investigatory purposes: Thompson stated
in a sworn declaration “that the ‘only reason’ for her call to Ms. Ayala was
to ‘repair the damage [Park’s] Private Investigators had done to [Ayala’s]
relationship with [Mr. Gilmore].’”
16                      PARK V. THOMPSON

Ayala that “John [Gilmore] was really upset about the whole
thing because he–he feels like they just made you lose faith
in him, I guess.” Park asserts that, in light of Gilmore’s
“history of violence towards Ms. Ayala,” Thompson’s
statements constitute thinly veiled threats that Gilmore might
retaliate against Ayala if she were to testify. Accepting Park’s
allegations as true and viewing them in the light most
favorable to her, it is plausible to infer that Thompson
intended to intimidate Ayala, a domestic violence victim, by
informing her that Gilmore, her abuser, was “really upset” by
her potential testimony.

    Moreover, Park contends that Thompson’s actual motive
in asserting Gilmore’s innocence, Park’s guilt, and the
defense team’s dishonesty was to dissuade Ayala from
testifying. See Bohn, 622 F.3d at 1138; see also Smith v.
Baldwin, 466 F.3d 805, 824 (9th Cir. 2006)10 (explaining that
the intent at issue in evaluating prosecutorial misconduct “is
the intent to cause a witness not to testify in a particular
manner or not to testify at all,” but intent is not at issue where
intimidation or coercion is obvious), vacated by Smith v.
Baldwin, 510 F.3d 1127 (9th Cir. 2007) (en banc). During the
phone call in question, Thompson declared, among other
things, that Gilmore was certainly innocent and that Park was
in fact the killer: “And first, what I want to tell you is that
John [Gilmore] is not the killer. . . . But the two people who
showed up at your house two weeks ago . . . they are private
investigators who were hired by the defense team that is
representing the killer [Park] [in] this case.”




    10
       Cited not as precedent but for the persuasiveness of its reasoning.
See 9th Cir. Gen. Order 5.5(d).
                         PARK V. THOMPSON                                17

    Park further alleges that Thompson made false
representations of the evidence against Park, incorrectly
stating, for example, that Park “left her blood DNA on the
door handle.” Detective Thompson also encouraged Ayala
not to “believe what they’re [the defense team] saying,”
because they were “going to tell every lie they can to try and
get [Park] off.” Thompson described the defense team as
“private investigators who are hired by [Park’s] defense
attorneys to try and shoot holes in – in our prosecution of
their – of the bad guy” and stated that they “bent the facts to
try to, you know, make you think something else.” Taken
together, the allegations regarding Thompson’s
misrepresentation of the evidence against Park, coupled with
her statements about Park’s guilt, Gilmore’s innocence, and
the defense investigators’ duplicity (as well as her statement
that Gilmore was “really upset” with Ayala), can reasonably
be interpreted as adequately pleading a deliberate intent on
the part of Thompson to intimidate and otherwise attempt to
persuade Ayala to refuse to testify on behalf of the defense.11

    b. Causation

    The district judge concluded that Park “has not pleaded
sufficient facts leading to a reasonable inference that it was
Defendant’s alleged persuasion that caused Ayala not to
testify.” He reasoned that the telephone conversation between
Thompson and Ayala was the only fact alleged connecting
Thompson to Ayala. In his view, because “various actors,”


    11
       Because the misconduct alleged above is sufficient, we do not
consider in this section the additional conduct that primarily relates to the
conspiracy claim involving the Doe defendants. For similar reasons, we
do not consider that additional conduct in subsection 2 relating to
causation or subsection 3 relating to materiality.
18                   PARK V. THOMPSON

including the deputy district attorney, Ayala’s defense
counsel, and the trial judge, “were involved in the time
between the telephone conversation and Ayala’s failure to
testify,” there was an insufficient causal link between
Thompson’s phone call and Ayala’s choice not to testify. We
disagree: Park’s complaint alleges sufficient facts to establish
a causal connection between Thompson’s conduct and
Ayala’s refusal to testify.

     Although our precedent clearly requires some “causal
link” between the government’s conduct and the witness’s
decision not to testify, see Juan, 704 F.3d at 1142, our cases
do not clearly specify how such a requirement may be
satisfied. Other circuits to address the issue have articulated
a variety of causation standards for claims of witness
interference. See Griffin v. Davies, 929 F.2d 550, 553 (10th
Cir. 1991) (“There must be a plausible showing that an act by
the government caused the loss or erosion of testimony that
was both material and favorable to the defense.”); United
States v. Hoffman, 832 F.2d 1299 (1st Cir. 1987) (“[A]n
accused must, at a minimum, demonstrate some plausible
nexus between the challenged government conduct and the
absence of certain testimony.”); United States v. Weddell, 800
F.2d 1404, 1412 (5th Cir.), opinion amended on denial of
reh’g, 804 F.2d 1343 (5th Cir. 1986) (remanding to the
district court for an evidentiary hearing on “whether or not
[the witness], except for the actions of the government, would
have indeed testified for her husband and that her testimony
would have had any effect on the jury verdict.” (emphasis
added)); United States v. Silverstein, 732 F.2d 1338, 1345–46
(7th Cir. 1984) (concluding that trial judge’s misstatements
to a witness about the potential for a perjury prosecution were
not the “decisive factor in [the witness’s] decision not to
testify” and any error was therefore harmless (emphasis
                          PARK V. THOMPSON                                   19

added)); United States v. Blackwell, 694 F.2d 1325, 1343
(D.C. Cir. 1982) (where “the witness herself never refuses to
testify” because of “the lack of a direct nexus between the
judge’s and prosecutor’s remarks and [the defendant’s] loss
of [the witness’s] testimony.”).

    To decide the present case, however, we need not adopt
any particular causation standard because the complaint in the
present case contains sufficient factual allegations to preclude
us from affirming on causation grounds under any reasonable
standard. Park’s defense team made a substantial effort to
obtain Ayala’s testimony, including serving her with a
subpoena. Before Detective Thompson’s phone call, Ayala
had committed to testifying for the defense and had
cooperated with defense investigators. After the phone
conversation, however, Ayala refused any further contact
with the defense investigators and subsequently declined to
testify.12 In light of all of the allegations taken together,




     12
        Although it is true, as the district judge noted, that the actions of the
trial judge, the prosecutor, Ayala’s defense lawyer, and Ayala herself
represent contributing causes to Ayala’s ultimate refusal to testify, the fact
that the actions of other individuals also contributed to Ayala’s decision
does not mean that Thompson’s phone call did not have a sufficient causal
connection to Ayala’s refusal: the subsequent actions of the prosecutor,
judge, and Ayala’s lawyer are not, drawing all inferences in Park’s favor,
unforeseeable intervening causes that would break the chain of proximate
causation set in motion by Thompson’s acts of persuasion. Causation in
this case is, moreover, ultimately a question for the finder of fact to
decide. See Farr v. NC Mach. Co., 186 F.3d 1165, 1171 (9th Cir. 1999)
(“As the Supreme Court emphasized, ‘[t]he issues of proximate causation
and superceding cause involve application of law to fact, which is left to
the factfinder, subject to limited review.’”) (quoting Exxon Co., U.S.A. v.
Sofec, Inc., 517 U.S. 830, 840–41 (1996)).
20                       PARK V. THOMPSON

including that Thompson called Ayala for an admittedly non-
investigatory purpose, misrepresented the evidence against
Park, implicitly suggested that Ayala’s former abuser was
upset with her, proclaimed Gilmore’s innocence and Park’s
guilt, and maligned the defense investigators, we conclude
that Park has adequately pleaded a causal connection between
Thompson’s phone call and Ayala’s decision to renege on her
original commitment to testify for the defense.13


     Insofar as the dissent suggests that either Supreme Court precedent or
our precedent binds us to apply a “but for” causation standard, it misreads
both our precedents (as explained above) and those of the Supreme Court.
See Dissenting Op. at 36 (citing Burrage v. United States, __ U.S. __, __,
134 S. Ct. 881, 887–89, 187 L. Ed. 2d 715 (2014)). Burrage did not
provide a causation standard for compulsory process claims, but rather
interpreted the phrase “results from” in the Controlled Substances Act to
encompass the rudimentary causation principle of actual cause. See 134
S. Ct. at 887–88, 892. This statutory interpretation does not control our
constitutional analysis here.

     Nor does our conclusion that Park has adequately pleaded causation
rely entirely, or even partially, on “conclusory information and belief
allegations.” Dissenting Op. at 36. To the contrary, taking the facts
pleaded in the complaint in the light most favorable to Park, we simply
conclude that they permit a “plausible” causal connection between
Thompson’s phone call, Ayala’s refusal immediately thereafter to
communicate further with Park’s defense team, and her subsequent refusal
to testify.
     13
        Thompson cites one case, Smiddy v. Varney, 803 F.2d 1469 (9th
Cir. 1986), to support her argument that the prosecutor’s actions broke the
chain of causation between her phone call and Ayala’s refusal to testify.
Smiddy, however, is inapposite for several reasons. First, that case deals
only with post-trial calculation of damages rather than the existence of a
cause of action. See id. at 1473 (“[T]he independent act of the prosecutor
four days after Smiddy’s arrest, unless shown to have been improperly
influenced by the police officers, cut off further liability for damages
suffered thereafter.”). Second, Smiddy applies to “negligent conduct,” not
                          PARK V. THOMPSON                                 21

2. Materiality

    Park must also “make some plausible showing” of how
the potential witness’s testimony “would have been both
material and favorable to [her] defense” to establish a
violation of her compulsory process and fair trial rights. See
Valenzuela-Bernal, 458 U.S. at 867. It is indisputable that
Ayala’s testimony would have been favorable to Park’s
defense, and Thompson does not contest that fact. Park must
therefore adequately allege only that Ayala’s testimony
would have been material. See id.

    a. Park’s acquittal did not render Ayala’s testimony
       immaterial.

    Thompson argues that Park’s acquittal bars her Section
1983 action, apparently on the theory that Ayala’s testimony
was rendered immaterial by Park’s acquittal. The district
judge at one point in his brief order “assum[ed] that [Park’s]
state court acquittal is not a bar to her Section 1983 claim,”
although he characterized the question “[w]hether a Section
1983 claim survives absent a conviction in an underlying
criminal action” as an open question in our circuit. He
nonetheless held that the exclusion of Ayala’s testimony
would not have been “material” to Park’s defense because,
even with the testimony, Park “would have obtained the same
result.”


to intentional misconduct by law enforcement officers. See id. at 1471,
1473 (recognizing that “pressure, undue influence, or knowing
misstatements by police could. . . extend the chain of causation”). Third,
Smiddy dealt with a Section 1983 claim for an unconstitutional arrest. See
id. at 1470. All in all, the causation analysis in that case is not relevant to
Park’s compulsory process and fair trial claims.
22                   PARK V. THOMPSON

    The district court was incorrect to characterize this issue
as an open question, and his order is inconsistent with the
established law of this circuit: our binding precedent clearly
explains that an acquittal does not bar a Section 1983 action
based on a due process violation during an underlying
criminal proceeding. Haupt v. Dillard, 17 F.3d 285, 287–88
(9th Cir. 1994). In Haupt, we held that “acquittal does not
erase all injury” but instead “speaks only to the amount of
damages.” Id. at 287. The defendant in Haupt was acquitted
despite the “egregious behavior” of a detective and a deputy
district attorney, who “threatened” and “intimidated” the trial
judge to the point “that [he did] not dare . . . give the advisory
verdict of acquittal” as he had originally intended. Id.
(Internal quotation marks omitted) (alteration in original).
The defendant then sued the detectives and municipal
defendants under Section 1983. Although “there was no
conviction” in the underlying criminal trial, we held that “the
alleged violation of Haupt’s due process rights was complete
when the trial judge changed his jury instructions because of
[the detective’s and prosecutor’s] intimidation.” Id. at 288.
Consequently, we held that Haupt’s acquittal did not defeat
his claim for denial of due process. Id.

     In addition to her compulsory process claim, Park, like
the plaintiff in Haupt, claims a violation of her right to a fair
trial under the Due Process Clause. This fair trial claim
necessarily incorporates her compulsory process claim, as the
right to obtain witnesses in one’s favor is part of the due
process “right to fairly ‘present a defense.’” United States v.
Juan, 704 F.3d 1137, 1141 (9th Cir. 2013) (quoting Webb,
409 U.S. at 98). Consequently, our analysis of Park’s
overlapping compulsory process and due process claims is
essentially the same, see note 8, supra, and her acquittal does
not bar either one.
                         PARK V. THOMPSON                               23

    Park was deprived of her principal and apparently sole
defense—that a third party was guilty of the murder—due to
Thompson’s alleged interference with Ayala’s testimony. The
circumstances of Park’s trial stand in stark contrast to those
in Valenzuela-Bernal, the Supreme Court’s seminal witness
interference case, in which the defendant did not know
whether the deported witnesses could actually aid in his
defense, 458 U.S. at 861, 872–74. Here, the state’s alleged
interference with her key witness entirely deprived Park of
her principal defense, thereby altering the entire trajectory of
her criminal trial.

    A trial in which the principal defense has been effectively
barred cannot be reconciled with the Due Process Clause,
which “guarantees that a criminal defendant will be treated
with that fundamental fairness essential to the very concept
of justice.” Valenzuela-Bernal, 458 U.S. at 872 (internal
quotation marks and citation omitted).14 The constitutional
violation in question here therefore includes not simply the
fact that Ayala’s testimony was improperly suppressed, but
also the consequent elimination of Park’s principal (if not her




    14
       A defense, of course, must be distinguished from simply punching
holes in the prosecution’s case by pointing out its weaknesses, which was
the basis of Park’s acquittal. See United States v. Spencer, 981 F.2d 1083,
1086 (9th Cir.) (distinguishing between failure of proof and defense of
misidentification), opinion amended and superseded on denial of reh’g,
1 F.3d 742 (9th Cir. 1992); cf. United States v. Scott, 437 U.S. 82, 98 n.11
(1978) (distinguishing between “acquittal on the merits” and the release
of a defendant “for reasons required by the Constitution or laws, but which
[reasons] are unrelated to factual guilt or innocence” and noting that the
Court has no difficulty in ascertaining such distinctions).
24                        PARK V. THOMPSON

only) defense.15 Park’s allegations thus plausibly establish an
“absence of [] fairness [that] fatally infected the entire trial,”
Valenzuela-Bernal, 458 U.S. at 872 (internal quotation marks
and citation omitted), in violation of her constitutional rights
under the Due Process Clause of the Fourteenth Amendment.

    Park’s acquittal did not erase Park’s constitutional injury,
see Haupt, 17 F.3d at 187, nor does it mean that Ayala’s key
testimony was not material. It would be a different case if
Ayala were one of many witnesses willing to testify to
Gilmore’s culpability: if other witnesses were available to
provide a predicate for Park’s third-party culpability defense,
then Ayala’s suppressed testimony might not have been
material, and Park’s trial would have been “fair.” Given that
Park’s principal defense was completely suppressed,
however, Ayala’s testimony was not somehow suddenly
rendered immaterial at the moment of Park’s acquittal. See id.
at 288. Thus, under Haupt, Park adequately alleges a
violation of her due process right to a fair trial based on the
suppression of Ayala’s testimony, regardless of the fact that
she was eventually acquitted. We recognize that the Eleventh
Circuit has created a conflict with Haupt in a subsequent

     15
       The trial judge explained that Ayala’s decision not to testify was
dispositive as to the admissibility of Park’s third party culpability defense:
“And if today Miss Ayala is asserting her 5th Amendment rights and not
going to testify, then I am going to preclude you from mentioning
anything about the third party culpability defense;” “[I]f you don’t have
a witness that is – can testify to [Gilmore’s statements], then it is not going
to come in and the jury is not going to hear it, and you are not going to
mention it in your opening statement. So the rubber meets the road today;”
“[I]f you can’t get the connecting evidence in [i.e. Ayala’s non-hearsay
testimony as to Gilmore’s statements while choking her, connecting him
to Redding’s murder], none of that other stuff [i.e. ongoing fighting
between Redding and Gilmore, including past violent outbursts] is coming
in”.
                         PARK V. THOMPSON                                25

compulsory process case. See Kjellsen v. Mills, 517 F.3d
1232, 1239–40 (11th Cir. 2008).16 We see no reason,
however, to abandon Haupt in favor of the Eleventh Circuit’s
approach in Kjellsen.17 That decision is not only inconsistent


    16
        We also recognize that in the Brady context, the Sixth and Tenth
Circuits have held Section 1983 claims are barred when the plaintiff was
acquitted. See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999);
McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988); see
also Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir.1998) (same). The
Seventh Circuit has explicitly declined to decide whether an acquittal bars
a subsequent Section 1983 action based on Brady violations. See Mosley
v. City of Chicago, 614 F.3d 391, 397 (7th Cir. 2010) (“Our circuit has not
directly resolved whether a plaintiff can assert a claim for a Brady
violation when the trial resulted in an acquittal.”).
    17
       We note that in Kjellsen, unlike in the case before us, the alleged
constitutional violation had no effect on the basic course of proceedings
of the trial nor on the issues that the fact-finder was required to resolve.
The plaintiff in that case sued for violation of his compulsory process right
based on the failure of the forensic sciences division of the Georgia
Bureau of Investigation to reveal an exculpatory retest of his blood alcohol
levels before his criminal trial for driving under the influence and other
charges. 517 F.3d at 1235–36. (This alleged violation was probably more
accurately characterized as a Brady violation, but the plaintiff did not
pursue relief under that theory. Id. at 1239 n.2.) Because the retest results
reflected similar numbers to those obtained from a retest performed by the
defense, these “additional test results . . . would not have materially
improved the information in the defense’s possession,” and therefore
“could not reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.” Id. at 1240. Therefore,
the materiality test was not satisfied. Id. In contrast, Thompson’s
misconduct in the present case not only deprived Park of potentially
helpful information, but also altered the entire trajectory of her trial by
wholly precluding the third party culpability evidence, which might have
secured her acquittal regardless of the deficiencies in the prosecutor’s
DNA evidence. This evidence, unlike the test results in Kjellsen, would
have “materially improved” her defense and “put the whole case in . . . a
different light.” Id.
26                  PARK V. THOMPSON

with our binding precedent in Haupt, but also fails to
recognize the distinction between a criminal prosecution and
a Section 1983 action.

    The concept of “materiality” does not carry a static and
uniform meaning across these two different contexts. In a
criminal case, in which the defendant seeks reversal of his
conviction, “materiality” means material to the conviction. In
other words, in a criminal case, suppressed evidence or
testimony is only material if it could have affected the fact-
finder’s determination whether the defendant is guilty beyond
a reasonable doubt. See Valenzuela-Bernal, 458 U.S. at 874
(explaining testimony is material “only if there is a
reasonable likelihood that [it] could have affected the
judgment of the trier of fact”).

    Valenzuela-Bernal, for example, dealt solely with the
materiality of evidence in a criminal case in which the
defendant was convicted. It stands for an elementary
proposition of our criminal law: we do not reverse
convictions based on the absence of testimony, evidence, or
even effective assistance of counsel, unless the convicted
defendant can demonstrate that he was somehow
“prejudiced” by the deprivation. 458 U.S. at 868. In
Valenzuela-Bernal, the Supreme Court unsurprisingly refused
to reverse a conviction simply because the government
deported two potential witnesses, especially given that the
defendant “made no attempt to explain” how the deportees’
testimony could have assisted his defense. Id. at 861, 872–74.
In short, the error was not “material” to the relief sought—the
reversal of the conviction.

   In contrast, in a Section 1983 action, the plaintiff is not
seeking reversal of his conviction, but rather compensation
                     PARK V. THOMPSON                        27

for the violation of his constitutional rights during a previous
criminal trial. In other words, he is seeking to vindicate his
right to a procedurally fair criminal trial. Consequently, the
materiality test in a Section 1983 case is directed towards a
different question: suppressed evidence or testimony is
material only if it affected the question whether the defendant
was deprived of a fair trial. The fact that a defendant was
acquitted has little to do with whether the trial was fair, see
Haupt, 17 F.3d at 287, and therefore has little to do with
materiality in the context of a Section 1983 claim.

     The Eleventh Circuit mechanically imported the
materiality requirement, as developed in criminal cases like
Valenzuela-Bernal, into its Section 1983 analysis without
recognizing this key distinction. Relying exclusively on
Valenzuela-Bernal, the Eleventh Circuit held that an acquitted
defendant can never state a claim for a violation of his
compulsory process right or his due process right to a fair
trial because the violation will never be “material.” Kjellsen,
517 F.3d at 1239. Kjellsen’s premise that a constitutional
deprivation is only “material” if it would have resulted in a
different verdict would mean that an acquittal nullifies any
Section 1983 claim by an acquitted criminal defendant. This
premise is wholly inconsistent with Haupt, which explicitly
holds that an acquittal does not bar a Section 1983 claim for
due process violations.

    The Eleventh Circuit’s failure to recognize that
materiality must have a different meaning in Section 1983
cases than in criminal cases was an error that led that circuit
to effectively bar all Section 1983 claims by acquitted
defendants and thus to create a direct conflict with our
precedent in Haupt. We decline to follow the Eleventh
Circuit’s approach, and instead reaffirm our binding rule:
28                      PARK V. THOMPSON

Park’s acquittal does not render Ayala’s allegedly suppressed
testimony immaterial, nor does it preclude her from bringing
a Section 1983 action to vindicate her right to a fair trial.

    Thompson contends that Haupt has been effectively
nullified because it relied on Cooper v. Dupnik, 963 F.2d
1220 (9th Cir. 1992) (en banc), which was later overruled by
the Supreme Court in Chavez v. Martinez, 538 U.S. 760
(2003). This argument is without merit. Cooper held that a
Miranda violation was actionable under Section 1983 despite
the fact that the defendant was “never formally . . . charged
in court and [] none of his statements ever were offered in
evidence to his potential detriment.” Cooper, 963 F.2d at
1245. This holding was overturned by Chavez, in which a
plurality of the Supreme Court said that an officer’s failure to
read Miranda warnings to a defendant before interrogation
violates only “judicially crafted prophylactic rules” and, for
that reason, was not actionable under Section 1983.18 Chavez,
538 U.S. at 772. Critically, Chavez simply does not address
cases in which a defendant’s “core constitutional right[s]” are
violated, see id. at 772, let alone hold that such violations
may not serve as the basis for a Section 1983 action if the
defendant has been acquitted. In short, Chavez in no way
undermines Haupt, and regardless of whether the Chavez




     18
       Justice Souter, joined by Justice Breyer, concurred in the judgment
only, on an even more limited basis. The concurrence, without which the
result in Chavez would not have garnered a majority of the Court,
explicitly declined to decide “whether the absence of Miranda warnings
may be a basis for a § 1983 action under any circumstance” because that
question was “not before the Court.” Chavez, 538 U.S. at 779 n.* (Souter,
J., concurring in the judgment) (emphasis added).
                         PARK V. THOMPSON                                29

plurality or Justice Souter’s even more limited concurring
opinion controls, Haupt remains the law of the circuit.19

    b. Ayala’s testimony was material to Park’s defense.

    The district court also concluded that Park failed to
adequately plead materiality because Gilmore’s statements
alone were not sufficient to lead to a reasonable inference that
he was the murderer and therefore Ayala’s testimony was
“not actually ‘exculpatory evidence.’” In his analysis, the
district judge required a higher degree of exculpation than is
appropriate under our precedents. We reverse and conclude
that Park has adequately pleaded that Ayala’s potential


    19
       In a subsequent case in this court, the three judges on the panel each
offered non-binding comments on an analogous question: whether a Brady
violation is actionable under Section 1983 following an acquittal. See
Smith v. Almada, 640 F.3d 931 (9th Cir. 2011). The majority opinion,
authored by Judge James Gwin, of the Northern District of Ohio sitting by
designation, address the effect of an acquittal because the author, along
with Ninth Circuit Judge Ronald Gould, concluded that the undisclosed
evidence was immaterial for reasons separate from the acquittal. See id.
at 939–40. In a separate special concurrence to his majority opinion, Judge
Gwin expressed his own view that had the panel been required to reach the
question, he would have held that Brady-based Section 1983 claims are
disallowed in the absence of a conviction. Id. at 945. Judge Gould also
filed a separate concurrence, indicating that if a case before him properly
presented the issue, he would be “inclined” to hold that an acquittal bars
Brady-based claims. Id. at 940. Judge D.W. Nelson dissented on the
ground that the undisclosed evidence was material, and its suppression
therefore violated the Brady doctrine. Id. at 946. Consequently, she would
have reached the question of an acquittal’s effect and would have held that
an acquittal does not bar a Brady-based Section 1983 claim. Id. at 948. In
the end, Almada did not reach the Haupt question, and Haupt remains
controlling precedent on the question before us: an acquittal does not
preclude a Section 1983 claim arising out of a fundamental constitutional
violation.
30                          PARK V. THOMPSON

testimony was material. Materiality does not require
incontrovertible evidence of exculpation; to the contrary,
evidence that tends to “cast doubt” on the government’s case
qualifies as material. See United States v. Leal-Del Carmen,
697 F.3d 964, 972 (9th Cir. 2012); see also Gov’t of Virgin
Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992)
(concluding witness’s excluded testimony was favorable and
material where “it could have served to cast doubt on
[victim’s] identification”).

    In the present case, were Ayala to have testified that
Gilmore choked her while referring to Redding’s death, it
would have been sufficient to permit Park to present a third
party culpability defense under California law. Ayala’s
testimony about Gilmore would have satisfied California’s
threshold standard for introducing evidence of third party
culpability, which merely requires “direct or circumstantial
evidence linking the third person to the actual perpetration”
of the murder. People v. Hall, 718 P.2d 99, 104 (Cal. 1986)
(defining standard that an accused must meet under California
law for admission of evidence of third-party culpability).
Consequently, the trial judge would likely have allowed Park
to mount a third-party culpability defense under Hall if Ayala
had been willing to testify.20 Even if circumstantial evidence
of third party culpability is not itself sufficient to compel
acquittal, it would have been sufficient to “cast doubt” on the
government’s evidence and would therefore have been
material. Leal-Del Carmen, 697 F.3d at 972.




     20
          See supra n.14.
                         PARK V. THOMPSON                              31

II. Civil Conspiracy Claim Under Section 1983

    Park also alleges that Thompson “orchestrated the
charging of Ms. Ayala to ensure that she did not testify for
the defense” and that, on information and belief, she brought
about that result in collaboration with a number of Doe
Defendants.21 After the District Attorney received notice that
Park planned to call Ayala as a defense witness, and after
Detective Thompson’s phone conversation with Ayala,
Thompson and/or a Doe defendant allegedly contacted the El
Segundo Police and convinced an officer to initiate charges
against Ayala. The District Attorney then unexpectedly
brought felony criminal charges against Ayala stemming
from a physical dispute with Gilmore approximately a year
earlier.

    Shortly afterwards, at Park’s criminal hearings, Ayala
declined to testify at Park’s trial because of these pending
charges and after the Deputy District Attorney threatened to
“recuse” her attorney if he did not advise her to invoke her
Fifth Amendment privilege. Following Ayala’s refusal to
testify, the District Attorney dismissed the felony charges,
and Ayala received a probationary sentence after pleading no
contest to a misdemeanor charge. Based on these facts, as
well as information and belief, Park alleged that Thompson
colluded with others to arrange for the filing of criminal

    21
       Although “[a]s a general rule, the use of ‘John Doe’ to identify a
defendant is not favored,” in circumstances “where the identity of alleged
defendants will not be known prior to the filing of a complaint . . . the
plaintiff should be given an opportunity through discovery to identify the
unknown defendants, unless it is clear that discovery would not uncover
the identities, or that the complaint would be dismissed on other grounds.”
Gillespie v. Civiletti, 629 F.2d 637, 642–43 (9th Cir. 1980). Here, Park is
entitled to discovery on the identity of the Does.
32                      PARK V. THOMPSON

charges against Ayala in an effort to make her unavailable to
testify at trial.

    Park’s complaint alleged facts that are “suggestive” of an
agreement to engage in “illegal conduct.” See Twombly, 550
U.S. at 564 n.8. When the entire factual context is
considered,22 it is clear that Park has “nudged [her] claim[]”
that Thompson conspired to orchestrate Ayala’s
unavailability “across the line from conceivable to plausible.”
See Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (internal
quotation marks omitted). “The Twombly plausibility
standard . . . does not prevent a plaintiff from pleading facts
alleged upon information and belief where the facts are
peculiarly within the possession and control of the defendant
or where the belief is based on factual information that makes
the inference of culpability plausible.” Arista Records, LLC
v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citations and
quotation marks omitted); see also Concha v. London, 62
F.3d 1493, 1503 (9th Cir. 1995) (“[W]e relax pleading
requirements where the relevant facts are known only to the
defendant.”). Because many of the relevant facts here are
known only to the defendant, and in light of the additional
facts alleged by Park, we conclude that she has pleaded




     22
        The dissent attempts to characterize this rather unusual course of
events as merely “some parallel conduct.” Dissenting Op. at 37. As
explained above, however, when the entire sequence of events in the
complaint is considered in context, what might otherwise appear to have
been coincidental parallel conduct on its own becomes “suggestive of
illegal conduct” and is thus sufficient to survive a motion to dismiss.
Twombly, 550 U.S. at 564 n.8.
                         PARK V. THOMPSON                              33

sufficient facts to state a plausible claim for civil conspiracy
under Section 1983.23

                          CONCLUSION

    For the reasons stated above, the district court’s dismissal
of Park’s complaint is reversed and remanded for proceedings
consistent with this opinion. REVERSED AND
REMANDED.



FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:

    I respectfully concur in part and dissent in part.

    I agree with the majority that we must review the district
court’s decision de novo. See Starr v. Baca, 652 F.3d 1202,
1205 (9th Cir. 2011). Moreover, I agree that we view the
allegations of the complaint in the light most favorable to the
plaintiff. But that does not mean that a complaint is sufficient
because we can imagine a possibility that the defendant has
committed some wrongdoing. Rather, “[w]here a complaint
pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation


    23
        Thompson contends that she is entitled to qualified immunity. The
district court declined to address Thompson’s qualified immunity
argument because it dismissed both of Park’s causes of action for other
reasons. We do not consider the question here in the absence of its initial
consideration by the district judge.
34                   PARK V. THOMPSON

marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662,
677–84, 686–87, 129 S. Ct. 1937, 1949–52, 1954, 173 L. Ed.
2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007).

    Moreover, where a plaintiff has relied upon a document,
or parts thereof, courts can properly consider the whole of the
document to be effectively incorporated by reference into the
complaint. See Branch v. Tunnell, 14 F.3d 449, 453–54 (9th
Cir. 1994), overruled on other grounds by Galbraith v.
County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002);
see also Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.
2007) (per curiam); Knievel v. ESPN, 393 F.3d 1068,
1076–77 (9th Cir. 2005).

    As the district court determined, Park’s complaint does
not cross the line and reach plausibility; it is blocked by the
principles outlined above.

    A. I agree that if a government officer “‘intimidates or
harasses the witness to discourage the witness from
testifying,’” that indicates “‘[u]ndue prosecutorial
interference.’” United States v. Bohn, 622 F.3d 1129, 1138
(9th Cir. 2010); see also Earp v. Ornoski, 431 F.3d 1158,
1170–71 (9th Cir. 2005); Williams v. Woodford, 384 F.3d
567, 601–02 (9th Cir. 2004). Unnecessarily strong warnings
can accomplish that. See, e.g., Webb v. Texas, 409 U.S. 95,
98, 93 S. Ct. 351, 353–54, 34 L. Ed. 2d 330 (1972) (per
curiam); United States v. Vavages, 151 F.3d 1185, 1190–91
(9th Cir. 1998); cf. United States v. Jaeger, 538 F.3d 1227,
1231–32 (9th Cir. 2008). Had Thompson engaged in that sort
of activity, she would have acted improperly. See Ayala v.
Chappell, 829 F.3d 1081, 1110–11 (9th Cir. 2016). She did
not do so.
                     PARK V. THOMPSON                         35

    In fact, Thompson did not threaten Ayala at all, and surely
did not suggest that Ayala should not testify. Of course, she
did state that Gilmore was “really upset.” However, that was
not because of what Ayala had said or would say, but because
the defense minions had bad-mouthed him and claimed that
he had committed other unsavory crimes. Gilmore was
concerned that their statements would cause Ayala to “lose
faith in him.” One could speculate that the “really upset”
language was, or was taken as, some sort of threat, but that
would be speculation about a mere possibility and a rather
strange reading of the whole conversation at that. By the
way, even if one were persuaded by the reasoning of Smith v.
Baldwin, 466 F.3d 805, 824 (9th Cir. 2006), vacated, 510
F.3d 1127, 1148–49 (9th Cir. 2007) (en banc), it is not at all
“obvious” that there was intimidation or coercion by
Thompson in this case.

      Furthermore, Thompson told Ayala that if she received a
subpoena she was “under an obligation to appear.”
Moreover, when Ayala said that she did not want to hurt
Gilmore, Thompson replied: “No, I understand. But—but
you have to tell the truth and you’ll have to let us do our job
. . . .” None of that bespeaks an attempt to keep Ayala from
testifying; quite the contrary.

    I recognize that Thompson entered dangerous territory
when she decided to talk to Ayala and tell her that she was
not required to speak further to Park’s investigators. See
Cacoperdo v. Demosthenes, 37 F.3d 504, 508–09 (9th Cir.
1994); United States v. Rich, 580 F.2d 929, 934 (9th Cir.
1978). But dangerous is not the same as forbidden.1

    1
       For example, our freeways are undoubtedly dangerous to all
drivers; they are not forbidden to them.
36                       PARK V. THOMPSON

Therefore, Thompson’s decision to speak with Ayala may not
have been wise, but it was not disastrous.2

    Incidentally, the complaint’s mere general pleading that
there is some sort of nexus between the conversation in
question and Ayala’s decision not to testify is conclusory and
insufficient. See Blantz v. Cal. Dep’t of Corr. & Rehab., 727
F.3d 917, 926–27 (9th Cir. 2013); see also Iqbal, 556 U.S. at
686–87, 129 S. Ct. at 1954. That is especially true in the
context of this case where, in fact, Ayala did appear at trial in
response to a subpoena, and refused to testify on wholly
different grounds—she, herself, was facing criminal charges
and invoked her Fifth Amendment rights on that account.
The district court was not required to accept the fantasy,
which was based on nothing more than the complaint’s
information and belief assertion, that Ayala would have
blithely incriminated herself were it not for the conversation
she had with Thompson. See Burrage v. United States, __
U.S. __, __, 134 S. Ct. 881, 887–89, 187 L. Ed. 2d 715 (2014)
(but for causation); Blantz, 727 F.3d at 926–27 (conclusory
information and belief allegations); Vavages, 151 F.3d at
1191 (but for causation).



     2
       It should be noted that even viewed through the majority’s
somewhat distorted lens, the alleged claim of substantial interference with
Park’s due process rights at trial is very weak. For example, just what
evidence was Park denied? Possibly, Ayala would have testified that
when she baited Gilmore by accusing him of killing the murder victim,
who everyone knew had been strangled, he choked her and said: “You
want to see how she felt?” Although there is no justification for his
reaction to her statement, it is important to recognize that he did not
spontaneously choose that topic. He was reacting to Ayala’s taunt.
Moreover, in their unusual relationship, Ayala had, it seems, also
assaulted Gilmore—hence her own prosecution.
                       PARK V. THOMPSON                             37

    Thus, I dissent from part I.1 of the Discussion portion of
the majority opinion.

    B. Because I do not think that there was a proper
allegation of a substantive violation, I also do not believe that
a conspiracy was effectively alleged. See Lacey v. Maricopa
County., 693 F.3d 896, 935 (9th Cir. 2012) (en banc).
Furthermore, there is not even a shard of a fact to show that
Thompson participated in any agreement to violate Park’s
constitutional rights. Even if she had committed a violation
when she spoke with Ayala, there is nothing to support the
claim that she conspired with others to have Ayala prosecuted
on criminal charges.3

    In addition, while the majority basically contents itself
with the reflection that in general a pleading of conspiracy on
information and belief is enough if defendants have the
information,4 I do not believe that that kind of conclusory
pleading can suffice here. See Blantz, 727 F.3d at 926–27;
see also Twombly, 550 U.S. at 555–58, 127 S. Ct. at 1964–66.
Were it otherwise, a party could evade the plausible-pleading
standard by merely asserting information and belief and
pointing to some parallel conduct. As it is, Thompson’s
phone call was a far cry from the filing of a criminal felony
complaint by another agency and prosecutor, even though
they both involved Ayala.



    3
       Those charges were hardly trumped up or false, and Ayala
ultimately pled nolo contendere to a lesser offense. See Williams, 384
F.3d at 601–02.
    4
      An interesting circular concept: I do not have evidence of an
agreement, but since I say that you agreed, you must have the evidence.
38                      PARK V. THOMPSON

    Thus, I dissent from part II of the Discussion portion of
the majority opinion.

    C. As I read the majority opinion (Discussion portion
part I.2), it seems to declare that an acquittal may or may not
ultimately preclude a constitutional claim; that will depend on
the facts and circumstances of the particular case.5 If I read
it aright, I do not disagree in principle with that general
proposition. However, as I have already indicated, in this
case the complaint does not spell out a constitutional claim in
the first place. Thus, I need not and do not opine on what the
result should be if Park had adequately pled that her rights
had been violated by Thompson’s conversation with Ayala.

    D. I agree with the majority that the issue of qualified
immunity should be remanded to the district court for its
consideration in the first instance. See, e.g., Harlow v.
Fitzgerald, 457 U.S. 800, 819–20, 102 S. Ct. 2727, 2739, 73
L. Ed. 2d 396 (1982); Price v. Hawaii, 939 F.2d 702, 707 (9th
Cir. 1991).

     Thus, I respectfully concur in part and dissent in part.




     5
     See Haupt v. Dillard, 17 F.3d 285, 287–88 (9th Cir. 1994); see also
Smith v. Almada, 640 F.3d 931 (9th Cir. 2011) (majority opinion, two
concurring opinions, and one dissenting opinion); Mosley v. City of
Chicago, 614 F.3d 391, 397–98 (7th Cir. 2010); Kjellsen v. Mills, 517
F.3d 1232, 1238–40 (11th Cir. 2008); Morgan v. Gertz, 166 F.3d 1307,
1310 (10th Cir. 1999); McCune v. City of Grand Rapids, 842 F.2d 903,
907 (6th Cir. 1988).
