                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 17 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



KENNETH L. MARSH,                                No. 09-55887

               Plaintiff - Appellant,            D.C. No. 3:05-cv-01568-JLS-AJB

  v.
                                                 MEMORANDUM *
COUNTY OF SAN DIEGO; M. L.
MURPHY, M.D.; DAVID L.
CHADWICK, M.D.; ROGER A.
WILLIAMS, M.D.; CHILDREN’S
HOSPITAL MEDICAL CENTER,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                       Argued and Submitted October 4, 2010

                                 Pasadena, California

Before:        WARDLAW and W. FLETCHER, Circuit Judges, and TIMLIN,
               Senior District Judge.**


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
       Kenneth Marsh appeals the district court’s denial of his partial summary

judgment motion and its grant of summary judgment to appellees Children’s

Hospital Medical Center (also known as Rady Children’s Hospital, or “RCH”), Dr.

David Chadwick, Dr. Roger Williams, and the County of San Diego. We affirm

the district court.

       To prevail on his § 1983 claims against RCH, Dr. Chadwick, and Dr.

Williams, Marsh had to show that the appellees’ actions were “actively

instrumental in causing the initiation of legal proceedings” against Marsh. Awabdy

v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004); see also Smiddy v.

Varney, 803 F.2d 1469, 1471 (9th Cir. 1986). The district court correctly found

that Marsh failed to produce evidence sufficient to create a genuine issue of

material fact on this issue. The prosecutor testified that his decision to prosecute

was based primarily on the lack of blood at the crime scene and his common-sense

assumption that deep neck cuts would bleed profusely. The prosecutor was also

entitled to consider evidence that Phillip had suffered severe and unexplained

medical problems that began after Marsh moved into the home of Phillip and his

mother; that the autopsy revealed injuries that were not caused by the fall, such as

two broken hands, one of which had never been treated; that every doctor who

treated Phillip at the time thought abuse was likely; and that short falls are rarely


                                           2
fatal. This evidence was sufficient to justify the prosecutor’s independent decision

to prosecute. The fact that medical knowledge has evolved since Phillip’s death

does not undermine the prosecutor’s actions at that time. Therefore, the § 1983

claims fail. The state-law malicious prosecution claim fails for the same reason.

      We also affirm the grant of summary judgment on Marsh’s Monell claims

against the County. Marsh did not produce evidence that doctors performing

autopsies are necessarily required to have forensic pathology certifications, or that

the county had a policy or practice of hiring unqualified doctors to perform

autopsies. Nor did Marsh produce evidence that Dr. Williams’s lack of

certification produced any flaws in his autopsy of Phillip. Marsh produced no

evidence that Dr. Williams knew in 1983 that Mannitol could exacerbate

intercranial bleeding, that Dr. Williams had any motivation to conceal the effects

of Mannitol administration, or that Dr. Williams in fact concealed anything related

to the Mannitol administration. Paul Pfingst’s statements in 1992 were made as a

private advocate, three years before Pfingst became the County’s District Attorney.

Marsh has produced no evidence that Pfingst had specific views in 1995 on Dr.

Chadwick’s performance in Marsh’s case. Further, his view that Dr. Chadwick

interpreted medical data aggressively in general was a prosecutor’s opinion about a




                                           3
witness. Marsh has presented no evidence that Pfingst believed that Dr.

Chadwick’s testimony was perjured.

      We also affirm the grant of summary judgment to appellees on the state-law

tort claims. All of the appellees’ alleged tortious actions are protected by

California’s litigation privilege. Cal. Civ. Code 47(b); Hagberg v. Cal. Fed. Bank

FSB, 32 Cal. 4th 350, 360-65, 375 (Cal. 2004). Therefore, the intentional infliction

of emotional distress and conspiracy claims fail.

      Finally, we affirm the district court’s denial of Marsh’s motion for partial

summary judgment. The Victim Compensation Board hearing did not fulfill the

requirements of Taylor v. Sturgell, 553 U.S. 880, 900 (2008), and so was not

entitled to preclusive effect.

      Dr. Chadwick and RCH’s motion to strike sections II, VII, and VIII from

Marsh’s reply brief is denied as moot.

      AFFIRMED.




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