                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

REXFORD LEROY NEWMAN, JR.,                
                Plaintiff-Appellant,             No. 04-56103
                v.
                                                  D.C. No.
                                               CV-02-01152-GLT
COUNTY OF ORANGE; MATTHEW
JOHNSON; JEFFREY PUSKAS,                          OPINION
             Defendants-Appellees.
                                          
         Appeal from the United States District Court
            for the Central District of California
          Gary L. Taylor, District Judge, Presiding

                     Argued and Submitted
              April 4, 2006—Pasadena, California

                      Filed August 7, 2006

   Before: Dorothy W. Nelson, Diarmuid F. O’Scannlain,
   Circuit Judges, and Robert C. Jones,* District Judge.

                 Opinion by Judge O’Scannlain




  *The Honorable Robert C. Jones, United States District Judge for the
District of Nevada, sitting by designation.

                                8891
8894            NEWMAN v. COUNTY OF ORANGE
                         COUNSEL

Jerry L. Steering, Law Office of Jerry L. Steering, Newport
Beach, California, argued the cause for the appellant and filed
a brief.

David D. Lawrence, Franscell, Strickland, Roberts & Law-
rence, Orange, California, argued the cause for the appellee;
Christina M. Sprenger and Jorge Chica were also on the brief.


                         OPINION

O’SCANNLAIN, Circuit Judge:

  We must decide what evidence a civil rights plaintiff alleg-
ing malicious prosecution must produce to overcome the pre-
sumption that a prosecutor exercises independent judgment in
choosing to file charges.

                               I

   Shortly before Christmas in 2001, Orange County Deputy
Sheriff Matthew Johnson (“Johnson”), a motorcycle officer,
initiated a traffic stop of Rexford Leroy Newman, Jr.
(“Newman”), in San Juan Capistrano, California. After John-
son handed him a traffic citation for speeding, Newman asked
if there was any chance he could receive a warning instead of
a citation. According to Johnson, Newman explained that he
had been in the Air Force and was a 30-year veteran pilot in
the airline industry. Newman claims that he told Deputy John-
son only that he had not had a ticket in the previous sixteen
years and that his father was a deputy sheriff. Newman even-
tually signed the citation and was given a copy of the ticket.
As Johnson turned to go, Newman said, “I hope you have a
Merry Christmas.” The two disagree about what happened
next.
                NEWMAN v. COUNTY OF ORANGE                   8895
                              A

   Johnson says that he walked back to his motorcycle and
began writing his notes about the traffic stop. Newman started
his car and accelerated back onto the highway, kicking up
rocks and debris that then peppered Johnson and his motorcy-
cle. Johnson got back on his motorcycle and pulled Newman
over again.

  Johnson instructed Newman to get out of his vehicle, and
Newman replied, “Why, just because of a little dirt? I don’t
see any dirt on you?” Newman then got out of his Jeep, and
Deputy Johnson informed him that he was under arrest. Dep-
uty Johnson’s initial crime report describes what happened
next:

    I told him to put his hands behind his back and as I
    grabbed his left arm from behind, he yanked his arm
    away from me and spun to his left. Newman yelled
    “you’re not going to arrest me for this.” As he spun
    he struck my left shoulder with his right arm. I then
    grabbed his left arm again and attempted to place a
    wristlock on him. He continued to try and pull away
    from me, so I attempted to trip him to the ground. As
    I attempted to trip him I slipped on the gravel and we
    both fell to the ground. I was on top of him and I
    used my radio pac set to call for assistance. Newman
    was still struggling and attempting to break free. I
    was holding him down and attempted to deploy my
    pepper spray. I removed my pepper spray from my
    duty belt and with one hand, attempting to hold him
    down. I could not get an accurate spray on Newman,
    the pepper spray had little or no affect [sic] on New-
    man.

      Assisting Deputies arrived and Newman was
    handcuffed and placed in the back seat of a marked
    patrol unit.
8896             NEWMAN v. COUNTY OF ORANGE
                               B

   By comparison, Newman claims that, after receiving his
speeding ticket, he replaced all of his documentation, checked
his mirrors, and pulled back into the flow of traffic. After
traveling 150-200 feet, he moved into the left turn lane when
he again saw Deputy Johnson’s motorcycle behind him, blue
lights flashing.

   Johnson pulled up beside Newman and yelled at him to pull
to the curb. When Newman asked if he could complete his left
turn, Johnson screamed at him to “pull to the right curb now.”
Newman did as instructed, and Deputy Johnson yelled at him
to step out of the car. Newman again complied and noticed
that Johnson was talking into his radio while standing in a
dangerous spot in the road. He yelled at Johnson “to get out
of the traffic, you’re going to get hit.”

   When Johnson finished with his radio, he told Newman to
“go sit on the curb.” Newman walked to the curb and turned
to sit, and as he did, he saw Johnson running and spraying
pepper spray towards him. As the pepper spray hit Newman’s
arm, he turned his body to the left, raising his right arm to
protect his face. Despite this, the pepper spray got in his face,
and Newman closed his eyes to protect them. Then Johnson
hit him in the back, knocking Newman to the ground and yell-
ing at him to “get prone on the ground.”

   At that moment, Johnson’s backup began arriving, includ-
ing Deputy Jeffrey Puskas. With Puskas’ assistance, Johnson
handcuffed Newman, searched him, and placed him in a
patrol car. Johnson then drove Newman to the Orange County
jail for booking.

                               C

  After Newman’s arrest, the Orange County District Attor-
ney’s Office filed a misdemeanor criminal action against him
                 NEWMAN v. COUNTY OF ORANGE                8897
for speeding and for resisting, obstructing, or delaying a peace
officer in violation of California Penal Code § 148. A jury
acquitted Newman of all charges.

   Following his acquittal, Newman filed suit under 42 U.S.C.
§ 1983 against Johnson, Puskas, and Orange County, alleging
over a dozen causes of action, including malicious prosecu-
tion. The defendants filed a motion for summary judgment,
which the district court granted on Newman’s malicious pros-
ecution claim, finding that he was unable to overcome the
presumption that the prosecutor had exercised independent
judgment.

  Newman sought leave to bring this interlocutory appeal,
and we granted his request. We review the district court’s
grant of summary judgment de novo. Delta Savings Bank v.
United States, 265 F.3d 1017, 1021 (9th Cir. 2001).

                               II

   Newman presents two arguments on appeal. First, he
claims that the district court misinterpreted our previous pro-
nouncements concerning the evidence required to rebut the
presumption that a prosecutor exercises independent judg-
ment. Second, assuming the district court’s interpretation was
correct, Newman insists that he produced sufficient evidence
to overcome the presumption. We address his arguments in
turn.

                               A

   [1] We have long recognized that “[f]iling a criminal com-
plaint immunizes investigating officers . . . from damages suf-
fered thereafter because it is presumed that the prosecutor
filing the complaint exercised independent judgment in deter-
mining that probable cause for an accused’s arrest exists at
that time.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.
1981) (Smiddy I). The plaintiff bears the burden of producing
8898             NEWMAN v. COUNTY OF ORANGE
evidence to rebut such presumption. Newman argues that he
rebutted the presumption with his account of his arrest. Our
cases suggest otherwise.

                               1

   We first identified the presumption in Smiddy I, 665 F.2d
at 266. There, an individual cleared of a murder charge
brought suit under 42 U.S.C. § 1983 against the officers
responsible for his arrest. Id. at 263-64. After a jury found for
the plaintiff, the officers appealed, claiming that they were not
liable for damages suffered after the district attorney filed the
formal complaint. Id. at 266. We agreed, noting that

    [a] police officer’s lot already is unfortunate because
    it is he who often is the only actor in the chain of
    decisions leading to prosecution who is subject to
    section 1983 liability. We need not make it more
    unfortunate by holding the officer liable for damage
    that is the result of the intervening fault of others in
    the chain. The existence of the possibility of absolute
    liability on the part of the municipality or govern-
    mental unit further underscores the justice of limit-
    ing the liability of the police officers.

Id. at 267. This justified a rebuttable presumption that a prose-
cutor exercises independent judgment in deciding to file
charges. After identifying such presumption, we returned the
case to the district court to determine whether the plaintiff
was able to rebut the presumption. Id. at 268.

   Following the remand, the district court granted summary
judgment to the plaintiff. We reversed, holding that the plain-
tiff had failed to meet his burden. Smiddy v. Varney, 803 F.2d
1469, 1471 (9th Cir. 1986) (Smiddy II). He produced no evi-
dence “that the district attorney was subjected to unreasonable
pressure by the police officers, or that the officers knowingly
withheld relevant information with the intent to harm [him],
                 NEWMAN v. COUNTY OF ORANGE                   8899
or that the officers knowingly supplied false information.” Id.
Thus, “the presumption was sufficient to require summary
judgment” for the defendant officers. Id.

                                2

   Our later cases further explained the types of evidence nec-
essary to overcome the presumption. In Borunda v. Rich-
mond, 885 F.2d 1384, 1390 (9th Cir. 1988), we affirmed an
award of damages that included attorneys’ fees incurred
defending against criminal charges of which the plaintiffs
were acquitted. The prosecutor based the decision to prose-
cute solely on the information contained in the officers’
reports, but the plaintiffs highlighted striking omissions in the
those reports as well as the fact that the officers themselves
offered conflicting stories. Id. On the basis of such evidence,
“[t]he jury was entitled to find . . . that [the officers] procured
the filing of the criminal complaint by making misrepresenta-
tions to the prosecuting attorney.” Id. Thus, the plaintiff had
rebutted the presumption of independent judgment, and the
attorneys’ fees were properly included in the calculation of
damages. Id.

   In Barlow v. Ground, 943 F.2d 1132 (9th Cir. 1991), a sim-
ilar case, we held that a civil rights plaintiff seeking attorneys’
fees as damages had also produced sufficient evidence to
overcome the Smiddy presumption. There, as in Borunda, the
prosecutor relied solely on the arresting officers’ reports,
which omitted critical information. Id. at 1137. Further, an
independent witness corroborated at least part of the plain-
tiff’s version of events, and the officers’ accounts conflicted.
Id.

   [2] In contrast, we have stated that a plaintiff’s account of
the incident in question, by itself, does not overcome the pre-
sumption of independent judgment. Sloman v. Tadlock, 21
F.3d 1462, 1474 (9th Cir. 1994). Sloman, like Borunda and
Barlow, involved whether attorneys’ fees could be counted as
8900             NEWMAN v. COUNTY OF ORANGE
damages. Like those cases, prosecutors relied exclusively on
reports submitted by officers. However,

    Sloman did not and does not point to any evidence
    of . . . fabrication other than the fact that the officers’
    reports were inconsistent with Sloman’s own
    account of the incidents leading to his arrest. Such
    conclusory allegations, standing alone, are insuffi-
    cient to prevent summary judgment.

Id. Because Sloman had no evidence of material omissions, or
inconsistent police or eyewitness accounts, he could not dem-
onstrate a genuine issue of material fact as to whether the
prosecutor exercised independent judgment. Summary judg-
ment for the defendant officers was therefore appropriate. Id.

                                3

   [3] Although Sloman addressed whether a plaintiff could
recover attorneys’ fees incurred in defending a criminal prose-
cution, we see no reason to apply its rule narrowly. Therefore,
Sloman’s rule should apply to malicious prosecution claims,
including Newman’s. Newman contends, however, that Slo-
man means only that an officer is not liable for damages “if
a malicious prosecution plaintiff’s version of the subject
events is different than the police version, but the prosecutor
would have filed” a criminal action based even on the plain-
tiff’s version.

   We decline to read Sloman’s clear statement so narrowly.
First, Newman’s argument places the focus on the wrong
party. The question, under Smiddy, is not whether the prose-
cutor, in the face of conflicting accounts, would have filed
charges based on the plaintiff’s story, but whether she would
have done so based on the officer’s. Prosecutors generally rely
on police reports—not suspect’s stories—when deciding
whether charges should be filed. We presume they rely on
their independent judgment when deciding whether such
                 NEWMAN v. COUNTY OF ORANGE                8901
reports warrant the filing of criminal charges, unless contrary
evidence is presented. If charges are filed, Smiddy protects the
officers unless such evidence shows that officers interfered
with the prosecutor’s judgment in some way, by omitting rele-
vant information, by including false information, or by pres-
suring the prosecutor to file charges. A suspect’s account of
an incident, by itself, is unlikely to influence a prosecutor’s
decision, and thus, it cannot, by itself, serve as evidence that
officers interfered with the prosecutor’s decision.

   Indeed, Newman’s argument would effectively nullify the
presumption entirely. We are hard-pressed to conceive of a
malicious prosecution case in which the plaintiff’s version of
events would not conflict with the arresting officer’s account.
In virtually every case, then, the presumption would be rebut-
ted, and it would never limit the liability of the officer, con-
trary to its stated purpose.

   [4] We must therefore reject Newman’s argument. To rebut
the presumption of independent judgment and to survive sum-
mary judgment on a malicious prosecution claim, a plaintiff
must provide more than an account of the incident in question
that conflicts with the account of the officers involved.

                               B

  Newman finally argues that he introduced sufficient evi-
dence to rebut the Smiddy presumption.

                               1

   First, Newman claims that “Deputy Johnson’s probable
cause declarations contradicted several of the material issues
of fact shown in his Initial Crime Report.” There are some
differences in the two documents. In his initial crime report,
Johnson says that he told Newman to get out of his vehicle,
while in the probable cause declaration, Johnson only says
that Newman “exited his vehicle.” In the crime report, John-
8902             NEWMAN v. COUNTY OF ORANGE
son states that he told Newman to put his hands behind his
back, but in the probable cause declaration, Johnson says that
he attempted to search Newman and told him to put his hands
behind his back. We are not persuaded that these discrepan-
cies are material.

   [5] The probable cause declaration and the initial crime
report agree that Newman reacted violently when Johnson
informed him that he was being arrested; he yelled, “You’re
not going to arrest me for this,” and hit Johnson with his right
arm. A struggle ensued that ended only when backup officers
arrived to help subdue Newman. The minor differences in the
two accounts do not concern Newman’s resistance or John-
son’s response. As such, they have no bearing on whether
Johnson interfered with the prosecutor’s independent judg-
ment because they do not concern the conduct for which
Newman was ultimately charged—resisting, obstructing, or
delaying an officer.

                               2

   [6] Second, Newman offers the fact that Deputy Johnson
initially denied listening to his personal audio tape recorder
on the day of Newman’s arrest, but later changed his story
after being confronted with a video that showed him doing
just that. Johnson stated that he believed his tape was already
full when he arrested Newman and that he turned the tape in
after his shift. The tape was never located, and the record con-
tains no evidence as to what it did or did not contain. More
importantly, neither Johnson’s probable cause declaration nor
his initial crime report say anything about whether he did or
did not listen to his recorder. We are not convinced that the
fact that an officer may have forgotten, over a year after the
fact, that he listened to an audio recording that may or may
not have recorded anything can, by itself, be considered
“ample evidence from which a reasonable jury could conclude
that the arresting officers, through false statements and mate-
                 NEWMAN v. COUNTY OF ORANGE                 8903
rial omissions in their reports, prevented the prosecutor from
exercising independent judgment.” Barlow, 943 F.2d at 1137.

                               3

  [7] We therefore conclude that Newman failed to provide
sufficient evidence to overcome the presumption of indepen-
dent judgment.

                               III

   In summary, the fact that a plaintiff’s version of an incident
conflicts with that of the law enforcement officers involved is
not enough to defeat the presumption that a prosecutor exer-
cises independent judgment. A plaintiff who presents only
such evidence cannot survive summary judgment on a mali-
cious prosecution claim. Newman’s evidence is therefore
insufficient to rebut the presumption, and the district court’s
grant of summary judgment on his malicious prosecution
claim is therefore

  AFFIRMED.
