Unpublished Disposition, 908 F.2d 976 (9th Cir. 1990)

MEMORANDUM^* 

The appellant, at the time a Los Angeles police officer, was accused of engaging in an act of oral copulation, in violation of Cal.Pen.Code Sec. 647(a) (West Supp.1990). After a jury deadlocked 11-1 for acquittal, the case was dismissed without opposition.

Fiacco then brought this civil action against the appellees: the City of Los Angeles; Police Chief Daryl Gates in his official and individual capacity; Terrence Dyment, the former Captain of the Internal Affairs Division, in his individual and official capacity; and two police officers who worked with the Internal Affairs Division, Lt. Robert Kurth and Sgt. Carl Wilhite, in their individual and official capacities (collectively, "the officers").

Fiacco's civil complaint had ten counts. The first four counts were based on the Civil Rights Act, 42 U.S.C. § 1983. The remaining counts alleged violations of state law. The district court granted the officers' motion for summary judgment on Fiacco's section 1983 claims. The court then declined to exercise its discretion to hear Fiacco's six state claims for relief. Fiacco now appeals and asks this court to reverse the district court's grant of summary judgment on his four section 1983 claims. We affirm.

Fiacco's first and third claims for relief were not briefed. These claims are therefore deemed abandoned. Fed. R. App. P. 28(a) (2); Meehan v. County of Los Angeles, 856 F.2d 102, 105 n. 1 (9th Cir. 1988).

Fiacco's second section 1983 claim alleged a due process violation based on Fiacco's right to receive exculpatory evidence. It is well settled that a prosecutor's failure to reveal material evidence, upon request, related to a criminal defendant's guilt or punishment, offends due process. Brady v. Maryland, 373 U.S. 83, 87 (1963). This rule also applies to impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985).

Fiacco filed a motion for discovery of exculpatory evidence in the possession or control of the prosecution and its agents. A discovery order granting the request was issued. The prosecution did not reveal that the two complaining witnesses, in their initial statements to the investigating officers, had originally stated that their niece, and not themselves, had witnessed the charged event. After further discussion with the officers, they admitted that they, and not their niece, had been witness to the event. The officers did not include this in their report. This initial misrepresentation did come out in the cross-examination of the complaining witnesses.

Assuming, as Fiacco asks this court to do, that the officers' failure to reveal evidence is a basis for a section 1983 claim when Fiacco was not convicted, there was no due process violation in this case. There is no due process violation "if the evidence is disclosed to the defendant at a time when the disclosure remains of value." United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988). Here, the evidence came out at trial during cross-examination of the complaining witnesses and Fiacco was able to make full use of the information to impeach their testimony. Fiacco thus had an opportunity "to cure any prejudice caused by the delayed disclosure" of the impeachment evidence at issue. United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). Therefore, no due process violation occurred and summary judgment on this claim was appropriate.

Fiacco's fourth claim for relief was premised upon an alleged due process violation resulting from an unconstitutional policy, practice or custom of the City of Los Angeles. See Monell v. Dept. of Soc. Serv., 436 U.S. 658, 690-691 (1978). Under Monell, local governments may be held liable for constitutional deprivations resulting from their policies, practices or customs. Id. Because no constitutional deprivation occurred under the facts of this case, summary judgment was proper on this claim as well.

The district court judgment is AFFIRMED.¹