Marco Milla v. City of Los Angeles;

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO MILLA,
Plaintiff-Appellant,
v.
CITY OF LOS ANGELES; et al.,
Defendants-Appellees.
No. 17-55330
D.C. No.
2:16-cv-00134-R-AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted November 16, 2018
Pasadena, California
Before: GOULD, PARKER,** and MURGUIA, Circuit Judges.
Plaintiff-Appellant Marco Milla was wrongfully arrested, convicted, and
incarcerated for over 10 years for murder. He appeals the District Court’s grant of
summary judgement dismissing his claims under § 1983. He alleged that
* This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
** The Honorable Barrington D. Parker, United States Circuit
Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
FILED
FEB 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendants unlawfully imprisoned and maliciously prosecuted him, violated due
process by using suggestive photo identification techniques, and withheld Brady
material. Milla also appeals the dismissal of Detective John Vander Horck for
failure to timely serve him. We affirm in part and reverse in part.
1. While probable cause is a bar to claims of false imprisonment and
malicious prosecution, the District Court erred in concluding that probable cause
existed because it is a question for resolution by a jury where, as here, genuine
disputes over material facts exist. See, e.g., Choi v. Gaston, 220 F.3d 1010, 1012
(9th Cir. 2000) (citing McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)).
Moreover, when determining probable cause to prosecute, “[w]hat facts the
defendant knew is an issue of fact for the jury.” Roberts v. McAfee, Inc., 660 F.3d
1156, 1164 (9th Cir. 2011). Here, probable cause was based primarily on
eyewitness identifications. Milla has raised genuine issues of material fact
regarding the identifications including, inter alia, whether the detectives asked
leading questions during the witness interviews, whether the witnesses’ earlier
testimony contradicted later identifications, and whether the detectives failed to
investigate Milla’s alibi.
2. The District Court determined that the photographic lineups used to
identify Milla were not sufficiently suggestive as to violate due process. Milla
challenges this determination, contending that his photograph was contained in two

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of the photo arrays shown to the witnesses and that the detectives asked the
witnesses leading questions. The District Court erred because genuine issues of
material fact existed regarding the identifications. Determinations such as “whether
the witnesses in this case had an opportunity to observe the crime or were too
distracted; whether the witnesses gave a detailed, accurate description; and whether
the witnesses were under pressure from [government] officials or others are all
questions of fact” that should be determined by a jury. Sumner v. Mata, 455 U.S.
591, 597 (1982).
3. Milla contends that Defendants withheld four pieces of evidence in
violation of Brady: (1) references in the Tape Record Log to recordings of
interviews with two key witnesses; (2) tapes that indicate that the witnesses who
identified Milla were unsure about the identification; (3) tapes that indicate that the
witness interviews in which Milla was identified were tainted by Defendants’
misconduct; and (4) the existence of Maria Flores, a witness who would have
corroborated his defense.
There is no genuine dispute that the prosecutors provided Milla the Tape
Log. The Log informed him of the identity of the witnesses and of the existence of
the tapes. He was free to listen to the tapes if he chose to do so and from them he
could gauge the tentativeness of the witnesses or the suggestiveness of the
detectives’ questions. Additionally, Milla knew the identity of most of the

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witnesses who could support his alibi defense. The only witness of which he was
unaware was Maria Flores. But it is undisputed that Defendants were also unaware
of her until Milla brought her forward in the course of moving for a new trial.
Thus, the District Court appropriately concluded that no Brady material was
withheld.
4. Milla also claims that the District Court erred in granting Detective
Vander Horck’s motion to dismiss. We agree. In its order granting Vander Horck’s
motion to dismiss, the District Court stated that it must dismiss unless Milla
demonstrated good cause. This misstates the law under Rule 4(m), which makes
clear that in the absence of good cause, a court has discretion to extend the period
in which service can be made. Fed. R. Civ. P. 4(m). Therefore, by failing to apply
the correct law, the District Court abused its discretion. We remand this issue to
permit the District Court to determine whether the period for service of process
should be extended.
5. Finally, Milla requests that we remand the case to a different district
judge. Although “[w]e reassign only in rare and extraordinary circumstances,” we
will do so when we find that “reassignment is advisable to maintain the appearance
of justice.” Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1045 (9th Cir.
2015). Milla was wrongfully imprisoned for over a decade, and his claims were,
and are, serious enough to warrant meaningful consideration. A decision at the

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summary judgement stage in a case such as this, without the benefit of a hearing or
oral argument, raises real doubts as to the care with which Milla’s claims were
examined. Therefore, on remand, we instruct the Chief Judge of the Central
District of California to assign the case to a different district judge.1
AFFIRMED IN PART, REVERSED IN PART, and REMANDED
WITH INSTRUCTIONS.
1 We believe that this case is appropriate for resolution through mediation. The
parties are therefore encouraged to attempt to mediate this case under the auspices
of the Circuit’s Mediation Office. See 9th Cir. R. 33-1.

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