                                                      FILED
                                          United States Court of Appeals
               UNITED STATES COURT OF APPEALS     Tenth Circuit

                           TENTH CIRCUIT           February 23, 2015

                                                  Elisabeth A. Shumaker
                                                      Clerk of Court

ABBY TISCARENO; GILLERMO
TISCARENO,

       Plaintiffs - Appellees,
                                             No. 13-4156
v.
                                  (D.C.No. 2:07-CV-00336-CW-DBP)
                                              (D. Utah)
LORI FRASIER, in her individual
capacity,

       Defendant - Appellant,

and

WILLIAM BEERMAN, in his
individual capacity; RICHARD
ANDERSON, in his individual
capacity and official capacity;
DAVID BRICKEY, in his
individual capacity;
INTERMOUNTAIN HEALTH
CARE, INC., in its individual
capacity,

       Defendants.



ABBY TISCARENO; GUILLERMO
TISCARENO,

       Plaintiffs - Appellees,

v.
                                                         13-4161
    IHC HEALTH SERVICES,                    (D.C.No. 2:07-CV-00336-CW-DBP)
                                                        (D. Utah)
           Defendant - Appellant,

    and

    LORI FRASIER, in her individual
    capacity; WILLIAM BEERMAN, in
    his individual capacity,

           Defendants.


                           ORDER AND JUDGMENT 


Before BRISCOE, Chief Judge, KELLY and BACHARACH, Circuit
Judges.


          In November 2003, a child (N.M.) experienced a severe brain injury

that left him permanently disabled. Ms. Abby Tiscareno, N.M.’s daycare

provider at the time, was blamed for this injury and prosecuted for child

abuse. But after two trials, Ms. Tiscareno was acquitted.

          Ms. Tiscareno and her husband, Mr. Gillermo Tiscareno, have

invoked 42 U.S.C. § 1983 against two of the defendants, Dr. Laurie Frasier

and IHC Health Services, Inc. The Tiscarenos claim that Dr. Frasier and




      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But, the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

                                        2
IHC failed to disclose exculpatory evidence under Brady v. Maryland, 373

U.S. 83 (1963), and that Dr. Frasier maliciously prosecuted Ms. Tiscareno.

      Dr. Frasier and IHC moved for summary judgment based in part on

qualified immunity. The district court denied this motion, and Dr. Frasier

and IHC seek interlocutory review of the denial of qualified immunity. We

conclude that Dr. Frasier and IHC are entitled to qualified immunity

because the summary judgment evidence does not reflect the violation of a

clearly established constitutional right. Based on these conclusions, we

reverse the denial of summary judgment.

      Under the malicious prosecution theory against Dr. Frasier, the

Tiscarenos must prove the absence of probable cause. And, even under the

Tiscarenos’ version of the facts, there was probable cause tying Ms.

Tiscareno to N.M.’s injury. Thus, the malicious prosecution theory fails as

a matter of law.

      The same is true of the Brady claim. Ms. Tiscareno was acquitted,

not convicted, and IHC lacked any notice that Brady would be applied to a

private hospital (whether or not it had a state contract). As a result, a fact-

finder could not reasonably infer the violation of a clearly established

constitutional right under Brady.

I.    N.M.’s Brain Injury and Medical Efforts to Find the Cause

      The suit grew out of Ms. Tiscareno’s daycare work. Through that

work, Ms. Tiscareno took care of N.M., a one-year-old boy in seemingly

                                       3
good health. Hours after his drop-off at daycare, N.M. was unresponsive

in his crib and Ms. Tiscareno called for an ambulance.

     N.M. was taken to a private hospital operated by IHC. At the

hospital, doctors saw N.M. displaying symptoms consistent with a brain

injury. As medical personnel tried to determine the cause, they began to

suspect that Ms. Tiscareno had abused the child. These suspicions

culminated in her arrest and prosecution.

     A.    The CT Scan

     Doctors ordered a computed tomography (CT) scan of N.M.’s head.

The results showed a massive hematoma (collection of blood) between

N.M.’s brain and his skull. Some of the bleeding was new; other bleeding

was old. Thus, doctors could not tell from the CT scan whether the injury

was old or new.

     B.    Dr. Walker’s Observations During Surgery

     Whatever the cause, Dr. Marion Walker (a neurosurgeon) concluded

that N.M. needed emergency surgery to stop the bleeding. During surgery,

Dr. Walker did not observe any evidence of prior bleeding. Instead, Dr.

Walker observed only “freshly clotted blood” resulting from several torn

arteries. Joint App. at 743. Based on his observations, Dr. Walker

concluded in an affidavit that N.M. had been violently shaken and thrown

down on a soft surface.




                                     4
     C.    Pathology Report

     During surgery, Dr. Walker removed a sample of the clotted blood

and had it sent to the hospital’s pathology department. Dr. Theodore

Pysher, a pathologist, concluded that the sample contained traces of

hemosiderin (an iron deposit left behind when the body re-absorbs blood).

To Dr. Pysher, the presence of hemosiderin suggested that N.M.’s brain

had bled on a prior occasion.

     In his surgical report, Dr. Walker did not state that he had sent the

blood clot to pathology. And, for unknown reasons, the pathology report

was not properly filed with N.M.’s other medical records.

     D.    Eye Examination

     After N.M.’s surgery, Dr. Scott Larson (an ophthalmologist)

examined N.M.’s eyes and saw thousands of retinal hemorrhages. In Dr.

Larson’s opinion, the retinal hemorrhages were consistent with “non-

accidental head trauma, shaking or impact.” Id. at 5216-17.

     E.    Dr. Frasier’s Report

     N.M.’s treating doctors suspected abuse, prompting administrators to

contact Dr. Laurie Frasier, a pediatrician whose job involved the

assessment of medical information in cases of suspected abuse. Dr. Frasier

examined N.M., reviewed the CT scan and medical records, and spoke with

Dr. Walker and N.M.’s father. Dr. Frasier concluded that N.M. “ha[d]

been subjected to abusive head injury” due to violent shaking “with

                                     5
possible impact.” Id. at 139. Dr. Frasier added that the injury had likely

taken place after the boy’s drop-off at daycare:

         [N.M.] would not have been normal for any period of time after
         the event . . . . A reasonable caregiver would have known
         immediately that [N.M.] was experiencing severe symptoms
         . . . . If he was normal . . . when he was dropped off (even if
         he was a little bit sleepy) this would not be consistent with a
         severe head injury before or at the time that he was left with
         the babysitter.

Id.

         In reaching her assessment, Dr. Frasier did not consider the results of

Dr. Pysher’s pathology report, which showed prior bleeding in N.M.’s

brain.

         F.   Arrest of Ms. Tiscareno

         Ms. Tiscareno was arrested for child abuse based on

             N.M.’s arrival at daycare in seemingly good health without
              visible signs of injury,

             Ms. Tiscareno’s status as the only adult with N.M. between his
              arrival at daycare and the absence of any other person capable
              of causing the injuries,

             consistency of the head injury with abusive trauma,

             Dr. Frasier’s conclusion that N.M. had likely been injured after
              arriving at daycare,

             small scratch marks on N.M.’s chest, and

             Ms. Tiscareno’s admission that she had shaken N.M. (although
              she had claimed the shaking was an attempt to save N.M.’s
              life).



                                         6
Id. at 3174-78.

     G.    First Trial

     Ms. Tiscareno went to trial on felony and misdemeanor charges of

child abuse. Ms. Tiscareno’s defense was that N.M. had an old injury that

created a hematoma and re-bled. Ms. Tiscareno’s counsel relied primarily

on the results of the CT scan showing evidence of past bleeding. Though

the pathology report also showed past bleeding, the hospital had not

furnished that report to the prosecution or the defense. Thus, Ms.

Tiscareno’s attorney was unable to utilize the pathology report during trial.

     The jury found Ms. Tiscareno guilty of felony child abuse. Before

the trial court entered a judgment of conviction, Ms. Tiscareno moved to

arrest the judgment based on erroneous jury instructions. After filing that

motion, Ms. Tiscareno became aware of the pathology report and obtained

the report from the hospital. With the pathology report, Ms. Tiscareno

filed a second motion for a new trial. That motion was based on her

discovery of the pathology report.

     The trial court granted the motion to arrest the judgment and granted

Ms. Tiscareno a new trial based on erroneous jury instructions. 1 Relying

on this ground, the court did not address the second motion (which

involved the pathology report).


1
      The court also concluded that the absence of an objection was not
fatal because defense counsel was ineffective.

                                      7
       H.   Second Trial

       Ms. Tiscareno was given a new trial. She again defended on the

ground that N.M.’s injuries had resulted from a preexisting hematoma that

suddenly re-bled. But, by the second trial, Ms. Tiscareno had obtained the

pathology report. Thus, in the second trial, Ms. Tiscareno was able to

utilize this report to show past bleeding. The court ultimately found Ms.

Tiscareno not guilty and entered a judgment of acquittal.

II.    Denial of Summary Judgment Based on Qualified Immunity

       In the subsequent action, the defendants moved for summary

judgment based in part on qualified immunity. The district court rejected

the defendants’ arguments, concluding that genuine issues of material fact

remained.

III.   Jurisdiction

       The Tiscarenos argue that we lack jurisdiction because the

defendants ask us to second-guess the district court’s factual-sufficiency

determinations. We disagree.

       As the Tiscarenos state, we cannot second-guess the district court’s

determinations on factual sufficiency. See Medina v. Cram, 252 F.3d

1124, 1130 (10th Cir. 2001). But, we can review the narrow legal question

before us: Do the facts accepted by the district court show the violation of

a clearly established constitutional right? See Pahls v. Thomas, 718 F.3d

1210, 1228 (10th Cir. 2013).

                                      8
      In conducting this limited review, we analyze the facts in a light

favorable to the Tiscarenos. Medina, 252 F.3d at 1128. In doing so, we

will not question the district court’s factual findings unless they are clearly

contradicted by the record. Lewis v. Tripp, 604 F.3d 1221, 1225-26 (10th

Cir. 2010).

IV.   Qualified Immunity

      Dr. Frasier and IHC argue that there is no evidence they violated a

clearly established constitutional right.

      A.      Malicious Prosecution (Dr. Frasier)

      On the malicious prosecution claim against Dr. Frasier, the plaintiffs

must show the absence of probable cause for Ms. Tiscareno’s arrest or

continued prosecution. See Wilkins v. Reyes, 528 F.3d 790, 799 (10th Cir.

2008). We conclude that there was probable cause at every stage of the

prosecution; thus, Dr. Frasier cannot incur liability for malicious

prosecution.

      Probable cause exists when the facts and circumstances show a

“substantial probability that a crime has been committed and that a specific

individual committed the crime.” St. John v. Justmann, 771 F.2d 445, 448

(10th Cir. 1985). Probable cause “must be evaluated as of the events in

question.” Pierce v. Gilchrist, 359 F.3d 1279, 1294 (10th Cir. 2004).

Thus, an eventual acquittal does not (in itself) show a lack of probable

cause. Id.

                                       9
     Based on the evidence presented on summary judgment, we conclude

that there was probable cause to support the charges of child abuse. The

evidence shows that

          N.M. was in Ms. Tiscareno’s sole care when bleeding began in
           the brain, which N.M.’s treating doctors attributed to violent
           shaking,

          the injury was so severe that N.M. would have shown
           immediate signs of injury, but he had been in seemingly good
           health upon his arrival at daycare, 2 and

          Ms. Tiscareno told police that she had shaken N.M. in an
           attempt to revive him.

Together, the evidence creates probable cause to believe Ms. Tiscareno

committed child abuse. See Kerns v. Bader, 663 F.3d 1173, 1180, 1188-90

(10th Cir. 2011) (concluding that officers had probable cause to arrest even

though the prosecutor ultimately dismissed the charges).

     According to the Tiscarenos, police and prosecutors based their

assessment of probable cause on Dr. Frasier’s “fabricated” medical

opinions and without the benefit of the pathology report, which showed

evidence of prior bleeding in N.M.’s brain. We disagree because probable

cause would have existed even without the allegedly fabricated opinions

and with the pathology report.




2
      At least one other physician had told Detective Leatham that “the
symptoms would like [sic] have manifested shortly after the infliction of
the injury.” Joint App. at 5259.

                                    10
     When false information has been allegedly included in a probable

cause analysis, we review for probable cause without that information. Id.

at 1188. Applying this standard, we conclude that probable cause would

have existed even without Dr. Frasier’s disputed opinions.

     The Tiscarenos also assert that the pathology report would have

precluded probable cause. We disagree. Even with the report, probable

cause would have remained.

     When correct information has been excluded from a probable cause

analysis, we review for probable cause as if that information had been

included. Id.

     As discussed above, the pathology report shows that a blood clot in

N.M.’s brain contained an iron deposit left behind when the body had re-

absorbed blood. The iron deposit shows that N.M.’s brain had bled on a

prior occasion. To the Tiscarenos, this evidence indicates that

     ●     N.M.’s brain injury resulted from a preexisting hematoma that
           re-bled, and

     ●     someone other than Ms. Tiscareno could have caused the
           hematoma.

But, even if the pathology report supported the plaintiffs’ theory, there was

other proof that Ms. Tiscareno had shaken N.M.

     This proof consisted of observations during surgery by Dr. Walker,

analysis of the bleeding by the physician that wrote the pathology report,




                                     11
and opinions by two ophthalmologists regarding the existence and

significance of the retinal hemorrhages.

      Dr. Walker, N.M.’s neurosurgeon, attributed the injury to violent

shaking and observed no evidence of a preexisting hematoma. When asked

about the traces of hemosiderin in N.M.’s brain, Dr. Walker opined that it

would be normal to find traces of hemosiderin in the brain of a child who

is learning to walk. Dr. Walker added: “It doesn’t take much to get a little

bit of old blood. I think it happens to everyone.” Joint App. at 922.

      Dr. Pysher, the author of the pathology report, emphasized that

Dr. Walker’s observations “would be key to understanding what was

present on the child’s brain in the form of old versus new blood.” Id. at

5613. Dr. Pysher also noted that there was “much more” evidence of fresh

blood in the clot sample than the “microscopic” traces of older bleeding.

Id.

      Two ophthalmologists also concluded that the injury had resulted

from shaking. Dr. Larson, who examined N.M. at the hospital, noted

“thousands” of retinal hemorrhages, which he concluded were consistent

with “non-accidental head trauma, shaking or impact.” Id. at 5216.

Dr. Alex Levin, who studied N.M.’s medical file, concluded that the retinal

hemorrhages were likely caused by shaking and discounted the idea that

the damage could have been caused by a re-bleeding hematoma.




                                     12
      With the testimony by these four physicians, probable cause would

have remained even with the pathology report’s additional evidence of past

bleeding. Thus, a reasonable trier of fact could not have found malicious

prosecution even with the Tiscarenos’ version of the facts. See V.S. v.

Muhammad, 595 F.3d 426, 428-29, 432 (2d Cir. 2010). 3 As a result, Dr.

Frasier is entitled to qualified immunity on this claim. 4



3
      The Second Circuit Court of Appeals addressed a similar issue in
V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010). There, an infant (V.S.)
suffered a fractured femur and skull and retinal hemorrhages (diagnosed as
a shaken baby syndrome). V.S., 595 F.3d at 428. A state agency attributed
the injuries to abuse by the mother, obtained temporary removal of the
infant, and proceeded with child abuse charges. Id. at 428-29. Before the
court rendered a decision, however, the agency withdrew all allegations
against the mother. Id. at 429. She sued, claiming a constitutional
violation through malicious prosecution. Id.

      The agency requested summary judgment. Id. at 429. The district
court held that a ruling on qualified immunity should await further
discovery. Id. at 430. The Second Circuit Court of Appeals reversed,
holding that the agency was entitled to summary judgment based on
qualified immunity. Id. at 431. The court reasoned that the agency could
reasonably rely on the diagnosis of shaken baby syndrome by two
physicians who had based their diagnoses on retinal hemorrhages, a
common indicator of shaken baby syndrome. Id. at 431. Doing so, the
court discounted the fact that the agency had failed to disclose to the
family court that V.S.’s mother had custody of the infant during much of
the relevant period. Id. Similarly, the court held that the agency was
entitled to qualified immunity even though one of the agency’s supervisors
had failed to disclose to the family court that one of the physicians had
said she no longer believed that the mother had injured the infant. Id. at
429.
4
      Dr. Frasier also argues that she has absolute immunity. We need not
address Dr. Frasier’s assertion of absolute immunity because we conclude
that she is entitled to qualified immunity.

                                      13
      B.    Brady Claim (Dr. Frasier and IHC)

      The plaintiffs also claim that Dr. Frasier and IHC withheld the

pathology report in violation of the right to a fair trial under Brady v.

Maryland, 373 U.S. 83 (1963). There the Supreme Court held that

government agents cannot withhold material exculpatory evidence upon

request by a defendant. Brady, 373 U.S. at 87.

      Dr. Frasier and IHC present different arguments on the Brady claim.

Dr. Frasier argues that Ms. Tiscareno was not deprived of a fair trial

because she was not convicted, and IHC argues that it had no clearly

established duty to locate and disclose potentially exculpatory evidence.

We agree with both arguments; thus, Dr. Frasier and IHC are entitled to

qualified immunity.

      1.    Absence of a Conviction (Dr. Frasier)

      Dr. Frasier argues that Ms. Tiscareno was not deprived of any rights

under Brady because there was no conviction. In support, Dr. Frasier cites

Morgan v. Gertz, 166 F.3d 1307 (10th Cir. 1999). We agree that Ms.

Tiscareno was not deprived of a fair trial absent a conviction.




                                      14
      The Tiscarenos argue that we cannot consider this argument because

Dr. Frasier failed to include the issue in her answer or motion for summary

judgment. 5

      The Tiscarenos’ reliance on Dr. Frasier’s answer is misguided. Dr.

Frasier is relying on the absence of a conviction as a basis for qualified

immunity, and she did plead qualified immunity in the answer. Appellees’

Supp. App., vol. I, at 112.

      Dr. Frasier’s omission of this argument in her summary judgment

motion would ordinarily preclude appellate review. See Fairchild v.

Workman, 579 F.3d 1134, 1144 (10th Cir. 2009) (“[W]e ordinarily do not

decide issues raised for the first time one appeal.”). But, we may consider

new arguments when they involve a matter of law and the proper resolution

is certain. Geddes v. United Staffing Alliance Emp. Med. Plan, 469 F.3d

919, 931 (10th Cir. 2006). Dr. Frasier’s new argument on appeal meets

these criteria: The argument involves a pure matter of law, and its

resolution is certain.

      In Morgan v. Gertz, we held that in the absence of a conviction, a

defendant “cannot be said to have been deprived of the right to a fair

trial.” 166 F.3d 1307, 1310 (10th Cir. 1999); see also Livers v. Schenck,

700 F.3d 340, 359 (8th Cir. 2012) (stating that a Brady claim requires a

5
      The Tiscarenos point out that Dr. Frasier violated 10th Cir. R.
28.2(C)(2) by failing to cite where this issue had been raised and decided
in district court.

                                     15
conviction); Flores v. Satz, 137 F.3d 1275, 1278-79 (11th Cir. 1998)

(same); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir.

1988) (same).

      The Tiscarenos have invoked Brady based on allegations that Dr.

Frasier withheld exculpatory evidence and fabricated evidence. But, as

discussed above, Ms. Tiscareno was not convicted.

      The plaintiffs point out that Ms. Tiscareno was found guilty in the

first trial. Although the jury found guilt, the trial court never entered a

judgment of conviction. And, “[a] conviction is effective only upon entry

of judgment by the trial court.” Morgan, 166 F.3d at 1310. 6 Thus, even

with the finding of guilt, Ms. Tiscareno was never convicted of a crime.

      Because Ms. Tiscareno was not convicted of a crime, Brady does not

apply. As a result, Dr. Frasier is entitled to qualified immunity on the

Brady claim.

      2.    Clearly Established Obligation (IHC)

      IHC argues that it had no clearly established constitutional obligation

to locate and disclose the pathology report. We agree. The Tiscarenos


6
       In Morgan, the jury rendered a guilty verdict, but the trial court
entered a judgment of acquittal. 166 F.3d at 1308-10. Though the jury
found the defendant guilty, we held that the claimant could not recover for
a Brady violation because there was never a judgment of conviction: “The
only judgment the court entered was a judgment of acquittal. Regardless
of any misconduct by government agents before or during trial, a defendant
who is acquitted cannot be said to have been deprived of the right to a fair
trial.” Id. at 1310.

                                      16
have not identified any authority that would have imposed such an

obligation. 7

      For purposes of qualified immunity, a constitutional right is “clearly

established” if the law at the time of the defendant’s conduct would have

provided “‘fair warning’” to the defendant. Pierce v. Gilchrist, 359 F.3d

1279, 1298 (10th Cir. 2004) (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)). For IHC, we ask if a private hospital under contract with the state

would have had fair warning of an independent constitutional duty to

locate and disclose medical evidence. No such warning would have been

evident at the time.

      A private hospital like IHC could have expected the prosecution to

bear an obligation to disclose exculpatory evidence to the defense. See

Brady v. Maryland, 373 U.S. 83, 87 (1963). And, the private hospital

could have anticipated extension of this obligation to law enforcement

officials and state agencies investigating crimes. See, e.g., Pierce, 359

F.3d at 1281, 1298 (holding that a forensic chemist with the police

department incurred liability under § 1983 for withholding exculpatory

evidence and fabricating evidence); Smith v. Sec’y of N.M. Dep’t of Corr.,

50 F.3d 801, 824 (10th Cir. 1995) (explaining, while reviewing a habeas

petition, that “the ‘prosecution’ for Brady purposes encompasses not only

7
      IHC also argues that it is not a state actor and that we have pendent
appellate jurisdiction to address this argument. We need not decide
whether IHC is a state actor because it has qualified immunity.

                                     17
the individual prosecutor handling the case, but also extends to . . . other

arms of the state involved in investigative aspects of a particular criminal

venture”). 8 But, as of the time of the first trial (October 2004), neither the

Supreme Court nor our court had extended Brady to private hospitals under

contract with the state.

      The Tiscarenos argue that IHC had a clearly established Brady

obligation based on our opinions in Pierce v. Gilchrist and Smith v. Sec’y

of N.M. Dep’t of Corr. Their reliance on these opinions is misplaced.

      In Pierce, we held that a forensic chemist employed by a police

department would have had fair warning that falsifying or withholding

evidence would violate a defendant’s right to a fair trial. 359 F.3d at

1299-1300. The case concerned the obligation of an individual working

with the police in the investigation, not a hospital’s obligation to assist in

an investigation related to its primary function of providing healthcare.

Pierce would not have given IHC fair warning that it had a Brady

obligation.

      In Smith, we stated that Brady obligations can extend to certain

“arms of the state” involved in an investigation. Smith, 50 F.3d at 824

n.35. But, as of the time of the first trial, neither the Supreme Court nor

8
      Although the Tiscarenos argue that Dr. Frasier could qualify as an
arm of the state investigating crimes, we need not consider this argument.
As discussed above, Dr. Frasier has elsewhere established that she is
eligible for qualified immunity because Ms. Tiscareno was never
convicted.

                                      18
our court had treated private hospitals as an “arm of the state” for purposes

of Brady.

     Because a private hospital had no clearly established obligation to

locate and disclose exculpatory evidence, IHC is entitled to qualified

immunity on the Brady claim.

V.   Conclusion

     Dr. Frasier and IHC are entitled to qualified immunity. As a result,

we reverse the district court’s denial of their summary judgment motions

and remand with instructions to grant these motions based on qualified

immunity.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




                                     19
13-4156, Tiscareno v. Frasier; 13-4161, Tiscareno v. IHC Health Services

BRISCOE, Chief Judge, concurring.

       I agree with the majority that Ms. Tiscareno cannot succeed in her pursuit of a

Brady claim against Dr. Frasier because her criminal trial did not result in a judgment of

conviction. In Morgan v. Gertz, 166 F.3d 1307 (10th Cir. 1999), we held that “the

withholding or destruction of evidence violates a criminal defendant’s constitutional

rights only if, as a result of the withholding or destruction of evidence, the criminal

defendant is denied a fair trial.” Id. at 1310. However, “[r]egardless of any misconduct

by government agents before or during trial, a defendant who is acquitted cannot be said

to have been deprived of the right to a fair trial.” Id. Here, because the only judgment

entered by the court in Ms. Tiscareno’s case was a judgment of acquittal, Ms. Tiscareno

has not been deprived of her right to a fair trial. As a result, her Brady claim fails.

Although this argument was not raised by Dr. Frasier before the district court, it presents

a purely a legal issue that we can resolve on undisputed facts. Our failure to reach this

issue would, in my view, result in manifest injustice by permitting a baseless claim to

proceed. Allowing this Brady claim to proceed would also result in a further waste of

judicial resources and undermine the spirit of qualified immunity. See Pearson v.

Callahan, 555 U.S. 223, 237 (2009) (“Qualified immunity is an immunity from suit rather

than a mere defense to liability.” (internal quotations omitted)).

       Contrary to the majority, however, I would not rely on IHC’s argument that it had

no clearly established duty to locate and disclose potentially exculpatory evidence to

grant IHC qualified immunity. As I understand Ms. Tiscareno’s argument, she asserts
that because Dr. Frasier participated in the investigation of this case on behalf of IHC,

IHC had a responsibility under Brady to locate and disclose the pathology report. But the

district court concluded that there was a factual dispute as to whether Dr. Frasier was

acting as an agent of IHC under the state contract and as to whether Dr. Frasier was

sufficiently involved in the investigation to be considered part of the prosecution. Rather

than wade into that factual morass, I would assume for purposes of IHC’s qualified

immunity motion that Dr. Frasier was working on behalf of IHC and then conclude that

because Dr. Frasier is entitled to qualified immunity, so too is IHC as regards Ms.

Tiscareno’s argument that IHC’s liability arises from Dr. Frasier’s actions. Without a

Brady violation, Ms. Tiscareno “cannot be said to have been deprived of [her] right to a

fair trial,” Morgan v. Gertz, 166 F.3d at 1310; and in the absence of a constitutional

violation by Dr. Frasier, IHC cannot be held liable under § 1983. See Estate of Larsen ex

rel. Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir. 2008); Dubbs v. Head Start, Inc.,

336 F.3d 1194, 1216-17 (10th Cir. 2003); Olsen v. Layton Hills Mall, 312 F.3d 1304,

1317-18 (10th Cir. 2002); see also Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151

(10th Cir. 2006).

       However, IHC did not actually argue that it cannot be held liable because no

constitutional violation occurred, only Dr. Frasier argued that. Generally, this failing

would preclude us from relying on this argument. Richison v. Ernest Group, Inc., 634

F.3d 1123, 1131 (10th Cir. 2011) (Where a party “fail[s] to argue for plain error” on

appeal, that “marks the end of the road for an argument for reversal not first presented to

                                              2
the district court.”). But if the premise of Ms. Tiscareno’s argument is that IHC is liable

because Dr. Frasier was acting on IHC’s behalf, then I think an argument can be made

that because Dr. Frasier raised this argument (and Ms. Tiscareno had the opportunity to

respond to it), we can apply the same analysis to IHC’s appeal. And given that we know

Ms. Tiscareno’s Brady claim fails as a matter of law, the claim against IHC should also

fail. See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions

may be taken up and resolved for the first time on appeal is one left primarily to the

discretion of the courts of appeals,” and “[c]ertainly there are circumstances in which a

federal appellate court is justified in resolving an issue not passed on below, as where the

proper resolution is beyond any doubt, . . . or where injustice might otherwise result.”

(internal quotations and citations omitted)); Sussman v. Patterson, 108 F.3d 1206, 1210

(10th Cir. 1997) (“‘[W]e may depart from [the general waiver rule] in our discretion,

particularly when we are presented with a strictly legal question, the proper resolution of

which is beyond doubt or when manifest injustice would otherwise result.’” (quoting

Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992))).

       While I rely on a different rationale to address IHC’s appeal, I concur in the result

reached by the majority in both appeals.




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