NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 12 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCO MILLA, No. 17-55330

Plaintiff-Appellant, D.C. No. 2:16-cv-00134-R-AJW v.

MEMORANDUM*

CITY OF LOS ANGELES; et al.,

Defendants-Appellees.

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. 1 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

2 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

3 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

4 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. 5