Michael Whitmore v. County of Los Angeles

NOT FOR PUBLICATION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-