Carol Phinney; Mr. and Mrs. Donald Ozburn, Plaintiffs-appellants, v. County of San Diego, Office of the County Coroner; David J.stark, R. Steve Phillips, M.d.; Robert Bucklin,m.d., Defendants-appellees, 26 F.3d 132 (9th Cir. 1994)

Before: BROWNING, and FLETCHER, Circuit Judges, and FITZGERALD, District Judge.^* 

MEMORANDUM^** 

Plaintiffs can establish a constitutional deprivation under Sec. 1983 only by proving the individual defendants intentionally misled authorities as to the cause of Travis's death. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (" [T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property."); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (no constitutional violation where doctor commits malpractice). After viewing the facts in the light most favorable to the plaintiffs, we conclude that plaintiffs did not offer such proof.¹ 

Guard's declaration states defendant Phillips disregarded Travis's prior medical history, failed to perform certain standard tests and procedures, and failed to take samples from crucial organs before the body was destroyed; it further states defendant Bucklin failed to assure the autopsy on Travis was performed according to the standard of care customary in the profession. At most, these facts suggest defendants Bucklin and Phillips were negligent.

Guard's declaration also states defendant Phillips was an associate of Travis's treating physicians and changed his conclusions regarding the cause of Travis's death after having several conversations with these physicians. These conversations were not recorded or otherwise documented. No evidence is offered as to their content. These facts provide no significant support for plaintiffs' theory that defendant Phillips falsified the autopsy report.

Finally, Guard's declaration states defendant Phillips and Travis's treating physicians were predisposed to conclude that a child's injuries resulted from child abuse. This fact may offer some basis for an inference that defendant Phillips produced an inaccurate autopsy report because he suffered from clouded judgment, but offers no support for the theory that he intended to produce an inaccurate report.² 

Guard's declaration states that defendant Stark retained defendant Phillips to perform the autopsy and that defendant Phillips was both unqualified and unobjective. Viewed most favorably to plaintiffs, these facts indicate, at most, that defendant Stark was negligent when he hired defendant Phillips, not that he intended that Phillips produce an inaccurate autopsy report.

Plaintiffs' failure to produce facts showing a constitutional deprivation also precludes recovery against the County. Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).

AFFIRMED.