Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1988)

MEMORANDUM^* 

J. Wesley Miller, prosecuted and acquitted of charges of molesting his daughter, brought suit under 42 U.S.C. § 1983 (1982) and state law against various individuals and governmental entities involved in that criminal proceeding. The district court granted summary judgment in favor of appellees on the section 1983 count and dismissed the pendent state claims, holding that appellees were all protected by absolute or qualified immunity. We review the district court's decision de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

A. Miller attempts to avoid the absolute prosecutorial immunity of the district attorney's office and the quasi-prosecutorial immunity of the Child Protective Services Division (CPS) and its employees by focusing on the adequacy of the investigation they conducted. With respect to the district attorney's office, however, Miller points to no specific conduct at all. There is no evidence that the district attorney's office ever conducted any investigation other than the evidentiary evaluation inherent in deciding whether to initiate a prosecution, or that it stepped outside of the prosecutorial role covered by absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 427 (1976); see id. at 430-31.

With respect to the CPS, its employees and Laura Slaughter, Miller does not challenge any quasi-prosecutorial or testimonial conduct that would be absolutely immune. See Meyers v. Contra Costa County Dep't of Social Servs., 812 F.2d 1154, 1156-57 (9th Cir.) (quasi-prosecutorial immunity), cert. denied, 108 S. Ct. 98 (1987); Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983) (testimonial immunity). To the extent that any investigatory conduct falls outside of these protected spheres, it is entitled to qualified immunity. While Miller challenges appellees' techniques and the completeness of their investigation, we find no evidence suggesting that their conduct either violated "clearly established statutory or constitutional rights of which a reasonable person would have known" or was otherwise inconsistent with a standard of "objective legal reasonableness." Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982); see Anderson v. Creighton, 107 S. Ct. 3034, 3038-39 (1987).

Moreover, it is unclear how Miller's rights were violated. "Negligent interviewing" is insufficient to establish a due process violation. See Daniels v. Williams, 474 U.S. 327, 333 (1986). At most Miller suggests malicious prosecution. However, absent proof that appellees intended to deny him equal protection or another specific constitutional guarantee, malicious prosecution cannot support a section 1983 action. Cline v. Brusett, 661 F.2d 108, 112 (9th Cir. 1981). In any event, that the appellees had probable cause to bring Miller to trial is sufficiently established by the municipal court's approval of the prosecution at the preliminary hearing and the fact that 11 jurors voted to convict at Miller's first trial.

B. Miller argues that the County of Santa Barbara's "official policy" or "governmental 'custom' " of providing inadequate training to its CPS employees renders it liable under Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978). Miller presents no evidence of the existence of any such policy or custom, relying solely on his criticisms of Mallison's and Slaughter's techniques. Their unrebutted affidavits in support of the motion for summary judgment indicate they received substantial training and were well experienced in their fields. See 1 Excerpts of the Record 70, at 36, 45-46. Summary judgment was entirely appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

C. Appellees seek costs and attorney's fees under 42 U.S.C. § 1988 (1982), which provides for the award of such fees in section 1983 cases "where the action brought is found to be unreasonable, frivolous, meritless or vexatious.' " Mayer v. Wedgewood Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir. 1983) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). For the reasons stated above, we believe that Miller "has failed to present any arguable reason why the district court erred in its disposition." Bugg v. International Union of Allied Indus. Workers of Am., Local 507, 674 F.2d 595, 600 (7th Cir.), cert. denied, 459 U.S. 805 (1982). Appellees are entitled to costs and reasonable attorney's fees pursuant to section 1988.

AFFIRMED.