MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
The Ninth Circuit reversed this court's grant of summary judgment in favor of defendant Stockton Deputy District Attorney Lester F. Fleming on the ground of absolute immunity and remanded the case to this court "for an initial determination by the district court of whether Fleming is entitled to qualified immunity." Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009). Currently before the court is Fleming's motion for summary judgment on the ground of qualified immunity.*fn1
The facts leading up to this civil rights case have been discussed at length by this court in its prior order granting partial summary judgment in favor of defendants, Ewing v. City of Stockton, No. Civ. 2:05-2270, 2008 WL 366156 (E.D. Cal. Feb. 8, 2009), and by the Ninth Circuit on appeal. Ewing, 588 F.3d 1218. To avoid repetition, the court will limit the discussion herein to the facts that are relevant to determine whether Fleming is entitled to qualified immunity.
On November 5, 2004, Mark Donahue was murdered at Shakers' Bar in Stockton, California, and Heather and Mark became the initial suspects, although the murder charges against them were ultimately dismissed. Id. at 1221-22. Based on evidence of their alleged involvement with the murder, police obtained a warrant to search their home and, when the search revealed marijuana plants and a handgun, the Ewings were arrested on gun and drug-related charges. Id. To decide whether to add murder charges ("add-book") against the Ewings, Stockton Police Officer John Reyes contacted Fleming for advice. Id. at 1222. Fleming informed Officer Reyes that he intended to file a criminal complaint charging the Ewings with murder and recommended that Officer Reyes add-book murder charges against them. Id.; Ewing, 2008 WL 366156, at *4. Officer Reyes followed Fleming's advice and add-booked murder charges against the Ewings, which precluded them from being eligible for bail. Ewing, 588 F.3d at 1222.
At the time Fleming recommended that Officer Reyes add-book murder charges against the Ewings, the police had obtained the following evidence. On the day of Donahue's murder, an altercation had occurred at Shaker's Bar between a group of men and two other men who were wearing vests identifying themselves as members of the Jus' Brothers Motorcycle Club ("Jus' Brothers"). Id. at 1221. During the altercation, a woman either accidentally bumped into or intentionally pushed Donahue, who was not a part of the altercation, and Donahue started yelling at the woman. Id. In response, the woman called for one of the men in the Jus' Brothers vests and that man initiated a fight with Donahue by hitting him over the head with what appeared to be a large, three-cell Maglite flashlight. Id.; Ewing, 2008 WL 366156, at *1. The altercation ended when the man wearing the Jus' Brothers vest pulled out a knife and stabbed Donahue. Ewing, 2008 WL 366156, at *1. The suspect then mounted a Harley Davidson motorcycle, joined on the back by the female companion who had summoned him, and departed. Id.
The day after the incident, Brian Shirk, who witnessed the events at Shakers' Bar and was standing next to Donahue when he was attacked, contacted Officer Reyes and told him that he had found a picture with the female companion on the Jus' Brothers' website. Ewing, 588 F.3d at 1221. The woman he identified in the picture was later determined to be Heather. Id.
Police subsequently obtained a warrant to search the Ewing residence and conducted the search. Id. at 1221-22. During the search of the Ewing residence, officers found a Harley Davidson motorcycle, a blue Maglite flashlight that was inside one of the motorcycle compartments, knives, and clothing with Jus' Brothers insignia. Id. at 1222. According to Officer Reyes, the Maglite "appeared to have some hair and maybe some blood on it," but an analysis of the trace evidence had not been conducted yet. (Reyes Dep. 197:1-198:2.) Although Officer Reyes testified that he told Fleming about this potential trace evidence, Fleming testified that he does not recall Officer Reyes telling him about the possible hair or blood on the Maglite and that he thinks he "would have remembered it" if Officer Reyes had relayed that information to him. (Id. at 202:16-203:1; Fleming Dep. 33:8-15.)
After the search, Officer Reyes compiled two six-pack photo lineups, one containing Heather and the other containing Mark. Ewing, 588 F.3d at 1222; Ewing, 2008 WL 366156, at *3. Each six-pack photo lineup was shown to five of the key witnesses, and three of the witnesses identified Heather as the female companion at the bar. Ewing, 588 F.3d at 1222; Ewing, 2008 WL 366156, at *3. Only one of the five witnesses provided a tentative (fifty to sixty percent) identification of Mark.
Ewing, 588 F.3d at 1222; Ewing, 2008 WL 366156, at *3. Shirk also indicated that, while he did not recall the name the female companion called out, it "may, might have had like, uh, uh K type of sound at the end of it, like a Mike or Jack." Ewing, 588 F.3d at 1222.
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c); see also id. R. 56(a) ("A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim."). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial.
Once the moving party meets its initial burden, the non-moving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party, but may not engage in credibility ...