George Souliotes v. City of Modesto;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE SOULIOTES,
Plaintiff-Appellant,
v.
CITY OF MODESTO; et al.,
Defendants-Appellees.
No. 17-15277
D.C. No.
1:15-cv-00556-LJO-SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief District Judge, Presiding
Argued and Submitted February 12, 2018
San Francisco, California
Before: SCHROEDER and WATFORD, Circuit Judges, and ILLSTON,** District
Judge.
This is a tragic case. For 16 years, George Souliotes was wrongly
imprisoned for a crime he has contended from the outset he did not commit. He
alleges that the defendants are responsible for his wrongful imprisonment because
FILED
MAR 02 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.

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they fabricated the key evidence against him and withheld exculpatory evidence
that might have changed the outcome of the trial. The allegations in his complaint
would have sufficed to avoid dismissal at the pleading stage before the Supreme
Court decided Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). But Souliotes has not alleged sufficient facts to
satisfy the more demanding pleading standard established by those decisions. For
that reason, we reluctantly affirm the district court’s judgment dismissing his
action with prejudice.
We note at the outset that the district court did not abuse its discretion by
denying Souliotes’ motion for relief under Rule 60(b) of the Federal Rules of Civil
Procedure. We therefore confine our review to the adequacy of the allegations
contained in the First Amended Complaint, although we would reach the same
result even if the new allegations included in the proposed Second Amended
Complaint were considered.
The core allegations in the complaint assert that the defendants framed
Souliotes by fabricating Sandoval’s eyewitness identification as well as the expert
opinion testimony declaring that the fire was caused by arson. Those allegations
are not backed by “factual content that allows the court to draw the reasonable
inference” that the defendants fabricated the evidence in question. Iqbal, 556 U.S.

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at 678. The complaint forcefully asserts conclusions concerning alleged
fabrication of evidence, but that is no longer enough. To survive a motion to
dismiss, a plaintiff must now allege enough underlying factual material from which
the stated conclusions may plausibly be inferred. Souliotes’ complaint fails to
allege the needed factual material, notwithstanding his access to the information
revealed in lengthy and successfully litigated habeas proceedings that eventually
led to his release.
The same deficiency requires us to affirm the dismissal of Souliotes’ claims
for suppression of evidence under Brady v. Maryland, 373 U.S. 83 (1963), or
Arizona v. Youngblood, 488 U.S. 51 (1988). The complaint alleges that the police
failed to disclose a sketch prepared by Sandoval and a recording of their interview
with her. The complaint further alleges that this evidence was exculpatory and
material because Sandoval’s initial description of the suspect and his vehicle did
not match Souliotes or his vehicle. That allegation is insufficient without greater
factual detail because at trial the jury learned that Sandoval’s initial description of
the suspect and his vehicle did not match Souliotes or his vehicle, and she was
cross-examined about those discrepancies. Thus, to infer that the allegedly
suppressed evidence might have been material (i.e., might have changed the
outcome of the trial), we would need to know something about the nature of the

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discrepancies revealed in the sketch and recording. Only then could we even begin
to infer that possessing the sketch and recording would have allowed Souliotes’
counsel to mount a sufficiently more effective cross-examination of Sandoval, such
that the outcome of the trial might have been different. The complaint is wholly
devoid of the necessary factual allegations on this score.
The district court properly dismissed Souliotes’ malicious prosecution claim.
Souliotes was bound over for trial following a preliminary hearing, which entails a
factual finding that probable cause existed to prosecute him for the charged
offenses. That finding is generally entitled to preclusive effect in a subsequent suit
for malicious prosecution, unless the plaintiff can plausibly allege that evidence
presented at the preliminary hearing was fabricated or that material exculpatory
evidence was withheld. Wige v. City of Los Angeles, 713 F.3d 1183, 1185–86 (9th
Cir. 2013); Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). As
discussed above, the complaint does not plausibly allege either fabrication of
evidence or suppression of material exculpatory evidence. As a result, we need not
resolve whether Souliotes can satisfy the favorable termination element of his
claim.
The district court properly dismissed Souliotes’ remaining claims for
supervisory liability, conspiracy, and liability under Monell v. Department of

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Social Services, 436 U.S. 658 (1978). The allegations supporting those claims,
too, fail to satisfy the pleading standard established by Twombly and Iqbal.
Defendants’ motion for judicial notice (Docket Entry 17) is GRANTED.
AFFIRMED.

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