Unpublished Disposition, 931 F.2d 60 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 931 F.2d 60 (9th Cir. 1991)

Kitrich A. POWELL, Plaintiff-Appellant,v.Alfred B. LEAVITT, Stephen H. Scholl, Defendants-Appellees.

No. 90-16121.

United States Court of Appeals, Ninth Circuit.

Submitted April 8, 1991.* Decided April 22, 1991.

Before WALLACE, Chief Judge, and GOODWIN and FLETCHER, Circuit Judges.


After investigating the suspicious nature of injuries to four-year-old Melea Allen, two police officers arrested Powell for felony child abuse. Five days later, after Allen died, Powell was rebooked on a charge of homicide. While awaiting trial, Powell filed a 42 U.S.C. § 1983 claim against the police officers, alleging that they had violated his constitutional rights by arresting him without probable cause. The district court dismissed Powell's claims on the grounds that the police officers were protected by qualified immunity. Powell now appeals that dismissal. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a) (3). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Powell first argues that the police officers are liable for damages under section 1983 because they arrested him without probable cause. The Supreme Court has held that the defense of qualified immunity is available to police officers sued under section 1983 for false arrest. Malley v. Briggs, 475 U.S. 335, 340 (1986). Thus, to escape section 1983 liability, the officers need not prove that actual probable cause existed to arrest Powell. The officers must only demonstrate that their decision to detain Powell was objectively reasonable, in light of clearly established law and the information they possessed. See Anderson v. Creighton, 483 U.S. 635, 639-41 (1987). Accordingly, we must affirm the dismissal of Powell's claim if a reasonable officer would have concluded that probable cause existed to arrest him. See id. at 641.

Suspicion arose in this case when Powell brought Allen to the hospital. She was unconscious, and had numerous bruises of varying ages on many parts of her body. After noticing her condition, the police officers conducted an investigation, and discovered that Allen was injured while she was in the sole care of Powell. Allen's two siblings told the police that Powell had physically abused them as well as Allen. Although Powell told the officers that Allen had suffered the injuries after being dropped in the course of play, the treating physician stated that the injuries were not consistent with such an explanation and that Allen was definitely an abused child. The police officers concluded that Powell was the most likely suspect in this case, and arrested him for child abuse. We conclude that the officers could reasonably believe objectively that there was probable cause to arrest Powell, and we therefore hold that the district court was correct to dismiss this action on the basis of the officers' qualified immunity. See id. at 639-41.

Powell also argues that the police officers violated his constitutional rights when they failed to give him his Miranda warnings before questioning him at the hospital. Powell raises this claim for the first time on appeal, however. "Issues not raised in the district court will not be heard on appeal absent a showing that review is necessary to prevent a miscarriage of justice, that a change in the law has created a new issue pending appeal, or that the issue is purely one of law." Ferris v. Santa Clara County, 891 F.2d 715, 719 (9th Cir. 1989), cert. denied, 111 S. Ct. 141 (1990). The exceptions listed do not apply in this case, and we therefore decline to rule on Powell's new claim.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4