                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 02 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GEORGE SOULIOTES,                                No.   17-15277

              Plaintiff-Appellant,               D.C. No.
                                                 1:15-cv-00556-LJO-SKO
 v.

CITY OF MODESTO; et al.,                         MEMORANDUM*

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                Lawrence J. O’Neill, Chief District Judge, Presiding

                     Argued and Submitted February 12, 2018
                            San Francisco, California

Before: SCHROEDER and WATFORD, Circuit Judges, and ILLSTON,** District
Judge.

      This is a tragic case. For 16 years, George Souliotes was wrongly

imprisoned for a crime he has contended from the outset he did not commit. He

alleges that the defendants are responsible for his wrongful imprisonment because

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
                                                                            Page 2 of 5
they fabricated the key evidence against him and withheld exculpatory evidence

that might have changed the outcome of the trial. The allegations in his complaint

would have sufficed to avoid dismissal at the pleading stage before the Supreme

Court decided Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft

v. Iqbal, 556 U.S. 662 (2009). But Souliotes has not alleged sufficient facts to

satisfy the more demanding pleading standard established by those decisions. For

that reason, we reluctantly affirm the district court’s judgment dismissing his

action with prejudice.

      We note at the outset that the district court did not abuse its discretion by

denying Souliotes’ motion for relief under Rule 60(b) of the Federal Rules of Civil

Procedure. We therefore confine our review to the adequacy of the allegations

contained in the First Amended Complaint, although we would reach the same

result even if the new allegations included in the proposed Second Amended

Complaint were considered.

      The core allegations in the complaint assert that the defendants framed

Souliotes by fabricating Sandoval’s eyewitness identification as well as the expert

opinion testimony declaring that the fire was caused by arson. Those allegations

are not backed by “factual content that allows the court to draw the reasonable

inference” that the defendants fabricated the evidence in question. Iqbal, 556 U.S.
                                                                             Page 3 of 5
at 678. The complaint forcefully asserts conclusions concerning alleged

fabrication of evidence, but that is no longer enough. To survive a motion to

dismiss, a plaintiff must now allege enough underlying factual material from which

the stated conclusions may plausibly be inferred. Souliotes’ complaint fails to

allege the needed factual material, notwithstanding his access to the information

revealed in lengthy and successfully litigated habeas proceedings that eventually

led to his release.

       The same deficiency requires us to affirm the dismissal of Souliotes’ claims

for suppression of evidence under Brady v. Maryland, 373 U.S. 83 (1963), or

Arizona v. Youngblood, 488 U.S. 51 (1988). The complaint alleges that the police

failed to disclose a sketch prepared by Sandoval and a recording of their interview

with her. The complaint further alleges that this evidence was exculpatory and

material because Sandoval’s initial description of the suspect and his vehicle did

not match Souliotes or his vehicle. That allegation is insufficient without greater

factual detail because at trial the jury learned that Sandoval’s initial description of

the suspect and his vehicle did not match Souliotes or his vehicle, and she was

cross-examined about those discrepancies. Thus, to infer that the allegedly

suppressed evidence might have been material (i.e., might have changed the

outcome of the trial), we would need to know something about the nature of the
                                                                           Page 4 of 5
discrepancies revealed in the sketch and recording. Only then could we even begin

to infer that possessing the sketch and recording would have allowed Souliotes’

counsel to mount a sufficiently more effective cross-examination of Sandoval, such

that the outcome of the trial might have been different. The complaint is wholly

devoid of the necessary factual allegations on this score.

         The district court properly dismissed Souliotes’ malicious prosecution claim.

Souliotes was bound over for trial following a preliminary hearing, which entails a

factual finding that probable cause existed to prosecute him for the charged

offenses. That finding is generally entitled to preclusive effect in a subsequent suit

for malicious prosecution, unless the plaintiff can plausibly allege that evidence

presented at the preliminary hearing was fabricated or that material exculpatory

evidence was withheld. Wige v. City of Los Angeles, 713 F.3d 1183, 1185–86 (9th

Cir. 2013); Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). As

discussed above, the complaint does not plausibly allege either fabrication of

evidence or suppression of material exculpatory evidence. As a result, we need not

resolve whether Souliotes can satisfy the favorable termination element of his

claim.

         The district court properly dismissed Souliotes’ remaining claims for

supervisory liability, conspiracy, and liability under Monell v. Department of
                                                                         Page 5 of 5
Social Services, 436 U.S. 658 (1978). The allegations supporting those claims,

too, fail to satisfy the pleading standard established by Twombly and Iqbal.

      Defendants’ motion for judicial notice (Docket Entry 17) is GRANTED.

      AFFIRMED.
