                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 12 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RIOLORDO APPLING, an Individual,                 No.   15-55732

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-08891-JAK-AJW
 v.

CITY OF LOS ANGELES, a local public              MEMORANDUM*
entity; DETECTIVE SUE
BRANDSTETTER; DETECTIVE
THOMAS SMALL, in his official
capacity; DETECTIVE TIMO ILLIG,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                       Argued and Submitted March 8, 2017
                              Pasadena, California

Before: PREGERSON, PAEZ, and CHRISTEN, Circuit Judges.

      This is a civil rights case brought by Riolordo Appling (“Appling”) under 42

U.S.C. §§ 1983 and 1985 against the City of Los Angeles and individual Los



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Angeles Police Department (LAPD) detectives. Appling’s civil rights claims arise

out of his arrest, conviction, and incarceration for a crime he argues he did not

commit. The district court granted summary judgment in favor of the defendants.

Appling timely appealed.

      Shortly after midnight on June 1, 2009, a fight broke out in the parking lot of

a Hollywood nightclub. The fight ended when the primary instigator (the “male

suspect”) and his female companion fled the scene in a white BMW. As the male

suspect sped out of the parking lot, he ran over Michael Weaver, who had been

punched unconscious during the melee. Mr. Weaver sustained serious injuries, but

survived.

      Responding LAPD detectives interviewed witnesses who described the

BMW, the male suspect, and his female companion. The detectives quickly

identified the woman, as she was a regular patron of the nightclub. After nearly a

year of unsuccessful attempts to contact her, the woman finally called the

detectives back. Although she was largely uncooperative, the woman told the

detectives she had a friend named Riolordo Appling who was a young African

American man, like the male suspect. The detectives ran Appling’s name through

a database and learned that he received a traffic ticket four months after the

incident while driving a white BMW. The detectives compiled a six-pack photo


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spread with Appling’s photograph and showed it to the seven witnesses they had

previously interviewed. Only one witness made a positive, unqualified

identification of Appling.

      The detectives then presented the case to the Los Angeles County District

Attorney’s Office. Prosecutors charged Appling with assault, felony hit and run,

and felony battery. The detectives obtained an arrest warrant and arrested Appling.

Appling pled not guilty. A jury convicted him on all counts.

      After his conviction, Appling hired a new attorney who requested further

forensic examination of the BMW Appling drove. The examination established

that the BMW Appling drove still had all of its factory windows. This was

significant because the driver’s side window of the BMW used in the crime had

been shattered in the course of the melee. Based on this evidence, it became clear

that the BMW Appling drove was not the same car used to commit the crime. As a

result, the trial judge granted Appling a new trial. The prosecutor did not refile

charges and the trial judge dismissed the case. Appling was incarcerated for 11

months.

      After Appling was released, he filed this civil rights action against the City

of Los Angeles and three LAPD detectives, alleging various civil rights claims

under 42 U.S.C. §§ 1983 and 1985. The district court granted the defendants’


                                          3
motion for summary judgment and Appling timely appealed. We have jurisdiction

under 28 U.S.C. § 1291 and we affirm in part, reverse in part, and remand for a

trial.

         “A grant of summary judgment is reviewed de novo. Likewise, a grant of

summary judgment on the ground of qualified immunity is also reviewed de novo.”

Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007) (citations

omitted). Appling alleges seven claims under 42 U.S.C. § 1983 and one claim

under 42 U.S.C. § 1985.1 We address each in turn.

         First, Appling argues that he was falsely arrested because the arrest warrant

application was facially invalid. Under 42 U.S.C. § 1983, a plaintiff may establish

a false arrest claim by showing “that a warrant lacked probable cause on its face.”

Chism v. Washington State, 661 F.3d 380, 386 n.9 (9th Cir. 2011). “Probable

cause to arrest exists when officers have knowledge or reasonably trustworthy

information sufficient to lead a person of reasonable caution to believe that an

offense has been or is being committed by the person being arrested.” United

States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). “[A]n affidavit supporting

the warrant, or the complaint itself, ‘must recite competent facts that would lead a


         1
        Appling abandoned an additional claim under § 1985(2) for conspiracy to
obstruct justice by failing to address it in his briefing. See, e.g., Weston v.
Lockheed Missiles & Space Co., 881 F.2d 814, 816 (9th Cir. 1989).
                                            4
man of ordinary caution and prudence conscientiously to entertain a strong

suspicion of the guilt of the accused.’” In re Walters, 543 P.2d 607, 614 (Cal.

1975) (en banc) (quoting People v. Cressey, 471 P.2d 19, 24 (Cal. 1970)). Officers

are entitled to qualified immunity unless the “lack of probable cause was so

obvious that any reasonable officer would conclude that the warrant was facially

invalid.” KRL v. Estate of Moore, 512 F.3d 1184, 1190 (9th Cir. 2008). For the

reasons discussed below, we reverse the district court’s order granting summary

judgment and qualified immunity in favor of the defendants as to this claim.

      Other than the felony complaint, the record does not reflect what documents

comprised the warrant application. The felony complaint contained few facts and

the record does not include a warrant affidavit. Even if the detectives included

every available fact in the warrant application, there was minimal evidence

supporting Appling’s arrest: witnesses gave vague and conflicting descriptions of

the male suspect, the BMW’s license plate number is disputed, and the

circumstances of the crime (it was dark and many witnesses were intoxicated), plus

the 11-month delay between the crime and the six-pack photo spread, render

witnesses’ identifications of Appling unreliable. See Manson v. Braithwaite, 432

U.S. 98, 116 (1977); Torres v. City of Los Angeles, 548 F.3d 1197, 1209 (9th Cir.

2008); Grant v. City of Long Beach, 315 F.3d 1081, 1088 (9th Cir. 2002), opinion


                                          5
amended on denial of reh’g, 334 F.3d 795 (9th Cir. 2003). Viewing this evidence

in the light most favorable to Appling, the nonmoving party, we conclude that

triable issues of material fact exist as to whether the “lack of probable cause was so

obvious that any reasonable officer reading the warrant would conclude that the

warrant was facially invalid.” KRL, 512 F.3d at 1192.

       Second, Appling argues that the defendants falsely arrested him because

they engaged in judicial deception. To survive summary judgment on a judicial

deception claim, a plaintiff “must make (1) a substantial showing of deliberate

falsehood or reckless disregard for the truth, and (2) establish that but for the

dishonesty, the challenged action would not have occurred.” Butler v. Elle, 281

F.3d 1014, 1024 (9th Cir. 2002) (internal quotation marks omitted). “[I]f an officer

submitted an affidavit that contained statements he knew to be false or would have

known to be false had he not recklessly disregarded the truth . . . the shield of

qualified immunity is lost.” Id. (citing Hervey v. Estes, 65 F.3d 784, 788–89 (9th

Cir. 1995)). For the following reasons, we reverse the district court’s order

granting summary judgment and qualified immunity in favor of the defendants as

to this claim.

       The defendants’ “pre-arrest warrant” reports (which the defendants allegedly

submitted to the judge issuing the arrest warrant) state that the BMW involved in


                                           6
the crime “was determined to have been driven by a Riolordo Appling.” But

whether Appling drove the BMW was exactly what had not been determined.

Because the record reflects uncertainty as to whether the BMW Appling drove had

a different license plate number than the BMW used in the crime, the

aforementioned statement constitutes at least a reckless disregard for the truth. The

defendants also failed to emphasize that only one witness was certain about his

identification of Appling from the photo spread. Viewing this evidence in the light

most favorable to Appling, the nonmoving party, we conclude that triable issues of

material fact exist as to whether the defendants recklessly disregarded the truth and

whether “but for the dishonesty” the judge would have issued the arrest warrant.

See Elle, 281 F.3d at 1024.

      Third, Appling alleges a malicious prosecution claim. A malicious

prosecution claim requires a showing “that the defendants prosecuted [the plaintiff]

with malice and without probable cause, and that they did so for the purpose of

denying [him] a specific constitutional right.” Smith v. Almada, 640 F.3d 931, 938

(9th Cir. 2011) (internal quotation marks omitted). Appling does not raise a

genuine issue of material fact regarding whether the defendants acted maliciously.

      Fourth, Appling contends that the defendants deliberately fabricated

evidence in violation of Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir.


                                          7
2001). Although witnesses provided varied descriptions of the male suspect, the

defendants did not fabricate witnesses’ statements. There is no evidence that the

defendants pressured witnesses, nor that they knew that the BMW Appling drove

could not have been the car used to perpetrate the crime.

      Fifth, Appling claims that the defendants withheld exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Appling claims that the

defendants hid evidence that the BMW Appling drove was not the vehicle used in

the crime. This claim is unsupported. Appling also argues that the defendants

concealed that one witness had an adverse incentive against Appling, but Appling

was already aware of this because that witness had filed a civil lawsuit against him.

See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (finding no Brady violation

where “Petitioner possessed the salient facts regarding the existence of the records

that he claims were withheld”). Finally, Appling argues that the defendants did not

give one of their investigative files to the prosecutors, but the file in question did

not exist until after Appling’s criminal trial.

      Sixth, Appling alleges an equal protection claim. “To succeed on a § 1983

equal protection claim, the plaintiff[] must prove that the defendants acted in a

discriminatory manner and that the discrimination was intentional.” Reese v.

Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). Appling argues


                                            8
that “there were different and unconstitutional standards afforded to him because

he is a black American.” This assertion is insufficient to overcome summary

judgment. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)

(“[C]onclusory statements of bias do not carry the nonmoving party’s burden in

opposition to a motion for summary judgment.”).

      Seventh, Appling alleges a municipal liability claim against the City of Los

Angeles. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690–91 (1978).

However, Appling does not provide evidence of a deficient LAPD policy or

custom sufficient to support his Monell claim.

      Finally, Appling alleges a claim under 42 U.S.C. § 1985(3). To establish a

§ 1985(3) claim, a plaintiff must, among other things, establish “some racial, or

perhaps otherwise class-based, invidiously discriminatory animus behind the

conspirators’ action.” Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir.

1992) (citation omitted). For the reasons previously outlined, Appling has not met

this burden.

                                         ***

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

the defendants as to Appling’s malicious prosecution, Devereaux, Brady, equal

protection, Monell, and § 1985(3) claims. We reverse the district court’s grant of


                                          9
summary judgment in favor of the defendants as to Appling’s false arrest claims,

i.e. that the warrant application was facially invalid and that the defendants

engaged in judicial deception. Accordingly, we remand for a trial.



AFFIRMED in part, REVERSED in part, and REMANDED.

      The parties shall bear their own costs on appeal.




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