The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
Defendant Jim Kelly has filed a motion for summary judgment as to the remaining claims pending against him. For the reasons discussed below, Kelly's motion for summary judgment is GRANTED.
The facts of this case were discussed at length in the Court's order filed on October 25, 2006 ("Summary Judgment Order"), and need not be repeated here.
In the Court's Summary Judgment Order, the Court granted summary judgment in favor of Burt, the County defendants, Cervantes and the City of San Diego. The Court also dismissed the claims against Palmer and issued an order to show cause why the case should not be dismissed as to Godine for failure to serve him with the Summons and Complaint. As for Kelly, the Court granted his motion for summary judgment as to the section 1985 and section 1986 claims but denied his motion for summary judgment as to the section 1983 claims that Kelly violated Plaintiffs' due process rights by fabricating evidence and conspired with Godine to deprive Plaintiffs of their due process rights.
The Court found that there was a triable issue of material fact as to whether Kelly planted or conspired with Godine to plant the gun evidence. Kelly did not brief and the Court did not address whether Plaintiffs could establish that they suffered any damages as a result of Kelly's actions.
Subsequently, Kelly requested leave to file another motion for summary judgment on the issues of causation and damages. In an order filed on December 19, 2006, the Court granted Kelly's request.
On December 19, 2006, counsel for Plaintiffs made an oral motion to dismiss the case as to Godine because counsel could not locate Godine and was unable to serve him with the Summons and Complaint.
The Court held a hearing on Kelly's second motion for summary judgment on February 22, 2007.
Plaintiffs contend that they were deprived of their due process rights because Kelly planted or conspired to plant the murder weapon under the lemon tree, lending support to the false story that Butler gave the gun to Godine to hide. Although there is a triable issue as to whether Kelly planted or conspired with Godine to plant the gun evidence, Kelly is entitled to summary judgment for the reasons discussed below.
A. Deprivation of Liberty
The manufacture of false evidence in and of itself does not constitute a constitutional violation; the plaintiff must show that the due process violation resulted in a liberty deprivation. Zahrey v. Coffey, 221 F.3d 342, 348-352 (2d Cir. 2000). See also Tomer v. Gates, 811 F.2d 1240, 1242 (9th Cir. 1987) (explaining that plaintiff had failed to establish that his due process rights were violated because there was no allegation that the use of fabricated evidence deprived him of any liberty or property interest).*fn1 With the possible exception of Edric Jordan, Plaintiffs cannot show that they were wrongfully deprived of liberty.
After the jury deadlocked as to the charges against Winters, Winters entered a plea of guilty to the crime of voluntary manslaughter and received a sentence of 11 years. This plea was never set aside. Therefore, the time Winters spent in confinement was attributable to ...