Devin Harmon v. Martin Marshal ( 2010 )

FILED
NOT FOR PUBLICATION AUG 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEVIN HARMON, No. 08-56057
Plaintiff - Appellant, D.C. No. 2:07-cv-00398-FMC-
AGR
v.
MARTIN MARSHAL; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Devin Harmon appeals pro se from the district court’s summary judgment
for defendants in his 42 U.S.C. § 1983 action alleging malicious prosecution. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. FTC v. Stefanchik,
*
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). Accordingly, Harmon’s
request for oral argument is denied.
559 F.3d 924, 927 (9th Cir. 2009). We affirm.
The district court properly granted summary judgment because Harmon
failed to raise a triable issue as to whether defendants lacked probable cause. See
Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (to prove malicious
prosecution under California law, plaintiff must show an absence of probable
cause); see also Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008)
(applying absence of probable cause requirement in Fourth Amendment context,
following Hartman v. Moore, 547 U.S. 250 (2006)) .
The district court properly relied on defendant Marshall's declaration
regarding fingerprint evidence to establish probable cause, and contrary to
Harmon's contention, the declaration was not subject to the standards for
admissibility of expert testimony under Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993). See Hart v. Parks, 450 F.3d 1059, 1067 (9th Cir. 2006) (evidence
relied upon to show probable cause need not meet standards for admissibility of
testimony in court).
All pending motions are denied.
AFFIRMED.
2 08-56057