                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 16 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MICHAEL WHITMORE,                                No. 10-56566

              Plaintiff - Appellant,             D.C. No. 2:09-cv-04095-DMG-
                                                 PJW
  v.

COUNTY OF LOS ANGELES; ETHAN                     MEMORANDUM*
MARQUEZ,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                             Submitted May 11, 2012**
                               Pasadena, California

Before: PREGERSON and GRABER, Circuit Judges, and CHEN, District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Edward M. Chen, District Judge for the U.S. District
Court for Northern California, sitting by designation.
      Plaintiff-Appellant Michael Whitmore (“Whitmore”) appeals the district

court’s grant of summary judgment for Defendants-Appellees in this 42 U.S.C.

§ 1983 action. The parties are familiar with the facts underlying the appeal and

thus we do not include them here.

      There is no triable issue of fact that Deputy Marquez fabricated evidence.

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc).

      Additionally, Whitmore’s malicious prosecution claim fails because he has

failed to demonstrate the existence of a genuine issue of fact as to whether he was

prosecuted for attempted murder and for attempted removal of a firearm with

malice and without probable cause. Awabdy v. City of Adelanto, 368 F.3d 1062,

1066 (9th Cir. 2004). Further, considering Whitmore’s criminal “judgment as a

whole,” Whitmore did not receive a favorable outcome. Casa Herrera, Inc. v.

Beydoun, 83 P.3d 497, 501 (Cal. 2004) (internal quotation marks omitted); see also

Poppell v. City of San Diego, 149 F.3d 951, 963 (9th Cir. 1998) (noting that “[a]n

acquittal . . . reveals very little—if anything—about whether charges were

procured with malice”).

      Accordingly, the district court’s grant of summary judgment as to the

foregoing claims is AFFIRMED.




                                        -2-
