                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LUQRIS THOMPSON,                                No.    16-16341

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-01286-JAD-NJK
 v.

LAS VEGAS METROPOLITAN POLICE                   MEMORANDUM*
DEPARTMENT; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                          Submitted December 6, 2017**
                            San Francisco, California

Before: SCHROEDER and GRABER,*** Circuit Judges, and ELLIS,**** District

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             This case was submitted to a panel that included Judge Kozinski, who
retired. Following Judge Kozinski’s retirement, Judge Graber was drawn by lot to
replace him. Ninth Circuit General Order 3.2.h. Judge Graber has read the briefs
and reviewed the record.
      ****
            The Honorable Sara Lee Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.
Judge.

      Luqris Thompson was exonerated and released from prison after spending

approximately four and a half years in prison for a robbery he did not commit. He

subsequently filed this 42 U.S.C. § 1983 action in the District of Nevada, alleging

violations of his federal constitutional rights and state-law claims for intentional

infliction of emotional distress, malicious prosecution, and false imprisonment

against the Las Vegas Metropolitan Police Department (“LVMPD”) and Detective

George Libbey arising from the investigation of the robbery and Thompson’s

subsequent wrongful conviction. We have jurisdiction under 28 U.S.C. § 1291.

We review the district court’s grant of summary judgment de novo. Ah Quin v.

Cty. of Kauai Dep’t of Transp., 733 F.3d 267, 270 (9th Cir. 2013). We also review

the district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6)

de novo. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994).

      Thompson contends that Libbey violated his rights under Brady v.

Maryland, 373 U.S. 83 (1963), by failing to obtain and disclose potentially

exculpatory evidence to Thompson before his criminal trial. Thompson did not

adduce any evidence that Libbey knew of, but failed to disclose, any exculpatory

evidence or that he acted in bad faith in failing to obtain exculpatory evidence.

Therefore, we affirm the district court’s grant of summary judgment in favor of

Libbey on the Brady claim and in favor of LVMPD on the related municipal


                                           2
liability claim arising under Monell v. Department of Social Services, 436 U.S. 658

(1978).

      Thompson’s claim for intentional infliction of emotional distress is premised

on his theory that Libbey intentionally withheld exculpatory evidence before the

criminal trial. But, again, Thompson failed to adduce any evidence that Libbey

knew of, but failed to disclose, any exculpatory evidence or that he acted in bad

faith in failing to obtain exculpatory evidence. Therefore, we affirm the district

court’s grant of summary judgment on this claim.

      Thompson also failed to allege facts sufficient to state a claim for malicious

prosecution and false imprisonment against Libbey in his Fifth Amended

Complaint. There are no plausible facts with which Thompson could amend his

complaint to state a claim for false imprisonment; therefore, we affirm the district

court’s decision to dismiss this claim. However, there are facts on which

Thompson could amend his complaint to state a claim for malicious prosecution.

Specifically, in his Fifth Amended Complaint (which did not include the already-

dismissed malicious prosecution claim), Thompson alleged that Libbey had

coached the victim during her grand jury testimony to bolster her identification of

Thompson. Therefore, we reverse the dismissal with prejudice and remand the

case with instructions to allow Thompson leave to amend his malicious

prosecution claim against Libbey.


                                          3
      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings consistent with this memorandum disposition. The parties shall

bear their own costs on appeal.




                                      4
