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Marsh v. County of San Diego

January 18, 2007

KENNETH M. MARSH, PLAINTIFF,
v.
COUNTY OF SAN DIEGO, M.L. MURPHY, M.D., DAVID L. CHADWICK, M.D., ROGER WILLIAMS, M.D., CHILDREN'S HOSPITAL MEDICAL CENTER AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER RE: PRECLUSIVE EFFECT OF PLAINTIFF'S CALIFORNIA VICTIM'S COMPENSATION AND GOVERNMENT CLAIMS BOARD PROCEEDINGS

Pending before the Court is Plaintiff Kenneth M. Marsh's motion for summary judgment, or in the alternative, motion for summary adjudication. (Doc. # 58). The Court heard oral argument regarding the motion on Monday, November 13, 2006.

PROCEDURAL HISTORY

On August 9, 2005, Plaintiff filed his Complaint in the present case, alleging a conspiracy to deprive him of his civil rights. (Doc. # 1). Plaintiff asserted seven causes of action, including federal civil rights, malicious prosecution, and Monell claims under 42 U.S.C. § 1983, as well as California state law claims for false imprisonment, intentional infliction of emotional distress, statutory civil rights violations, and malicious prosecution against Defendants County of San Diego, Children's Hospital Medical Center, Dr. M.L. Murphy, Dr. David Chadwick, and Dr. Roger Williams (collectively, Defendants). On November 16, 2005, Defendants moved to dismiss the Complaint. (Doc. # 5). On May 5, 2006, the Court granted Defendants' motion to dismiss in part, and denied the motion in part. (Doc. # 45). The Court dismissed Plaintiff's § 1983 Fourteenth Amendment claim and his state claims for false imprisonment and statutory civil rights violations. (Doc. # 45). The Court did not dismiss Plaintiff's § 1983 Fourth Amendment, malicious prosecution, and Monell claims, and further did not dismiss Plaintiff's state law claims for intentional infliction of emotional distress, malicious prosecution, and claims under Cal. Civ. Code §§ 43 and 45. (Doc. # 45).

Defendants answered the Complaint in May, 2006. (Docs. # 47, 49). Each Defendant asserted various affirmative defenses, including that Plaintiff was responsible for the damages he suffered because Plaintiff caused the death of Phillip Buell. On September 26, 2006, Plaintiff moved for summary judgment. (Doc. # 58).

FACTUAL BACKGROUND

On April 27, 1983, two-year old Phillip Buell died after sustaining injuries while in the care of Plaintiff Kenneth M. Marsh (Plaintiff). Plaintiff's Motion for Summary Judgment, Ex. 4at 23. The State of California charged Plaintiff with second-degree murder, and the case went to trial. Children's Hospital and Dr. Chadwick's Opposition to Plaintiff's Motion for Summary Judgment, Ex. 1 at 8. At the trial, Dr. Chadwick and other physicians testified that Phillip Buell died as a result of non-accidental injury, and on November 28, 1983, a unanimous jury convicted Plaintiff of second-degree murder for Phillip Buell's death. Declaration of Dr. David Chadwick, ¶ 2; Children's Hospital and Dr. Chadwick's Opposition to Plaintiff's Motion for Summary Judgment, Ex. 1 at 8.

Plaintiff appealed his conviction, but did not prevail. Plaintiff's Mot. Summ. J., Ex. 3. On appeal, the California Court of Appeal held that Plaintiff's conviction was "overwhelmingly supported" by the evidence, and noted that "medical experts unanimously ruled out accidental death." Plaintiff petitioned for writ of habeas corpus, but the petition was denied.

Plaintiff petitioned for writ of habeas corpus a second time in 2003. After the filing of the second Petition, the San Diego District Attorney sought the expert opinion of Dr. Samuel P. Guilino regarding the cause of Phillip Buell's death. Though Dr. Guilino was "concerned that the head injury which caused the death of Phillip Buell may have been the result of inflicted trauma," he was ultimately "unable to conclude beyond a reasonable doubt or to a reasonable degree of medical certainty, that [Buell] was a victim of child abuse." Marsh's Request for Judicial Notice, Ex. 20 at 14. In light of that opinion and the entirety of the record, the San Diego District Attorney asked the San Diego Superior Court to grant Plaintiff's writ of habeas corpus. Plaintiff's Mot. Summ. J., Ex. 21. On August 10, 2004, the San Diego Superior Court granted Plaintiff's writ of habeas corpus and set aside Plaintiff's conviction. Children's Hospital's Opp'n, Ex. 3. On September 3, 2004, the District Attorney moved to dismiss the case against Plaintiff on the grounds that reasonable doubt existed, even though the State denied that Plaintiff was "factually innocent." Children's Hospital's Opp'n, Ex. 2. Children's Hospital's Opp'n, Ex. 2. The San Diego Superior Court granted the motion to dismiss. Prior to his release, Plaintiff had been incarcerated for close to twenty-one years.

After the Superior Court dismissed the charges against him, Plaintiff filed a claim for damages with the California Victim's Compensation and Government Claims Board (Claims Board) pursuant to California Penal Code § 4900. Plaintiff's Mot. Summ. J., Exs. 22-25. In December, 2005, the Claims Board held a hearing to determine whether Plaintiff was entitled to monetary compensation for wrongful incarceration. Plaintiff's Mot. Summ. J., Ex. 23. At the hearing, Deputy State Attorney General James Dutton (Dutton) represented the interests of the State of California.

At the commencement of the Claims Board hearing, Dutton represented the State of California's role as follows:

MR. DUTTON: Jim Dutton, Your Honor, from the Attorney General's Office in an advisory capacity having to do with Penal Code Section 4900 et seq.

Children's Hospital's Opp'n, Ex. 4 at 21 (Emphasis added.). Plaintiff's attorney Donnie Cox (Cox) also noted that,

[B]oth [Hearing Officer Hedum] and Mr. Dutton indicated that [Hearing Officer Hedum] considered this to be a fact finding procedure, more than an adversarial procedure, and I think Mr. Dutton agreed with us on that.

Children's Hospital's Opp'n, Ex. 4 at 22. The State did not call witnesses during the Claims Board hearing, and noted the point on the record--"As you are aware, we will not be calling any witnesses, we'll just be respondent and cross-examining when appropriate some of the witnesses for the claimant." Children's Hospital's Opp'n, Ex. 4 at 10, 23. The State also failed to object to questionable evidence introduced by Marsh, such as Plaintiff's witness Ted Armijo testifying that he believed Marsh's version of the events. Finally, the State did not oppose Plaintiff's version concerning Phillip Buell's cause of death, did not oppose Plaintiff's proposed legal conclusions, and ultimately admitted that Plaintiff established his innocence by a preponderance of the evidence. Declaration of Colin H. Murray, ¶¶ 13-16, Children's Hospital's Opp'n, Ex. 7 at 77.

Defendants, with the possible exception of the County of San Diego, were not given notice of Plaintiff's Claims Board proceedings. McCarthy Decl., ¶ 7; Murray Decl., ¶¶ 3-5; Declaration of David L. Chadwick, ¶¶ 5-6. Nor were Defendants in the present case actual parties in Plaintiff's Claims Board proceedings. Declaration of Deborah A. McCarthy, ¶ 6; Murray Decl., ¶¶ 3-4. In fact, none of the Defendants in the present case was given the opportunity to ...


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