UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

ABBY TISCARENO; GILLERMO 

TISCARENO, 

 Plaintiffs - Appellees, 

v. 

LORI FRASIER, in her individual 

capacity, 

 Defendant - Appellant, 

and 

WILLIAM BEERMAN, in his 

individual capacity; RICHARD 

ANDERSON, in his individual 

capacity and official capacity; 

DAVID BRICKEY, in his 

individual capacity; 

INTERMOUNTAIN HEALTH 

CARE, INC., in its individual 

capacity, 

 Defendants. 

ABBY TISCARENO; GUILLERMO 

TISCARENO, 

 Plaintiffs - Appellees, 

v. 

No. 13-4156 

(D.C.No. 2:07-CV-00336-CW-DBP)

(D. Utah) 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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IHC HEALTH SERVICES, 

 Defendant - Appellant, 

and 

LORI FRASIER, in her individual 

capacity; WILLIAM BEERMAN, in 

his individual capacity, 

 Defendants. 

13-4161 

(D.C.No. 2:07-CV-00336-CW-DBP) 

(D. Utah) 

ORDER AND JUDGMENT

Before BRISCOE, Chief Judge, KELLY and BACHARACH, Circuit 

Judges. 

In November 2003, a child (N.M.) experienced a severe brain injury 

that left him permanently disabled. Ms. Abby Tiscareno, N.M.’s daycare 

provider at the time, was blamed for this injury and prosecuted for child 

abuse. But after two trials, Ms. Tiscareno was acquitted. 

Ms. Tiscareno and her husband, Mr. Gillermo Tiscareno, have 

invoked 42 U.S.C. § 1983 against two of the defendants, Dr. Laurie Frasier 

and IHC Health Services, Inc. The Tiscarenos claim that Dr. Frasier and 

 



 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But, the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

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IHC failed to disclose exculpatory evidence under Brady v. Maryland, 373 

U.S. 83 (1963), and that Dr. Frasier maliciously prosecuted Ms. Tiscareno. 

Dr. Frasier and IHC moved for summary judgment based in part on 

qualified immunity. The district court denied this motion, and Dr. Frasier 

and IHC seek interlocutory review of the denial of qualified immunity. We 

conclude that Dr. Frasier and IHC are entitled to qualified immunity 

because the summary judgment evidence does not reflect the violation of a 

clearly established constitutional right. Based on these conclusions, we 

reverse the denial of summary judgment. 

Under the malicious prosecution theory against Dr. Frasier, the 

Tiscarenos must prove the absence of probable cause. And, even under the 

Tiscarenos’ version of the facts, there was probable cause tying Ms. 

Tiscareno to N.M.’s injury. Thus, the malicious prosecution theory fails as 

a matter of law. 

The same is true of the Brady claim. Ms. Tiscareno was acquitted, 

not convicted, and IHC lacked any notice that Brady would be applied to a 

private hospital (whether or not it had a state contract). As a result, a factfinder could not reasonably infer the violation of a clearly established 

constitutional right under Brady. 

I. N.M.’s Brain Injury and Medical Efforts to Find the Cause 

 The suit grew out of Ms. Tiscareno’s daycare work. Through that 

work, Ms. Tiscareno took care of N.M., a one-year-old boy in seemingly 

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good health. Hours after his drop-off at daycare, N.M. was unresponsive 

in his crib and Ms. Tiscareno called for an ambulance. 

 N.M. was taken to a private hospital operated by IHC. At the 

hospital, doctors saw N.M. displaying symptoms consistent with a brain 

injury. As medical personnel tried to determine the cause, they began to 

suspect that Ms. Tiscareno had abused the child. These suspicions 

culminated in her arrest and prosecution. 

 A. The CT Scan 

 Doctors ordered a computed tomography (CT) scan of N.M.’s head. 

The results showed a massive hematoma (collection of blood) between 

N.M.’s brain and his skull. Some of the bleeding was new; other bleeding 

was old. Thus, doctors could not tell from the CT scan whether the injury 

was old or new. 

B. Dr. Walker’s Observations During Surgery 

Whatever the cause, Dr. Marion Walker (a neurosurgeon) concluded 

that N.M. needed emergency surgery to stop the bleeding. During surgery, 

Dr. Walker did not observe any evidence of prior bleeding. Instead, Dr. 

Walker observed only “freshly clotted blood” resulting from several torn 

arteries. Joint App. at 743. Based on his observations, Dr. Walker 

concluded in an affidavit that N.M. had been violently shaken and thrown 

down on a soft surface. 

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 C. Pathology Report 

During surgery, Dr. Walker removed a sample of the clotted blood 

and had it sent to the hospital’s pathology department. Dr. Theodore 

Pysher, a pathologist, concluded that the sample contained traces of 

hemosiderin (an iron deposit left behind when the body re-absorbs blood). 

To Dr. Pysher, the presence of hemosiderin suggested that N.M.’s brain 

had bled on a prior occasion. 

In his surgical report, Dr. Walker did not state that he had sent the 

blood clot to pathology. And, for unknown reasons, the pathology report 

was not properly filed with N.M.’s other medical records. 

 D. Eye Examination 

 After N.M.’s surgery, Dr. Scott Larson (an ophthalmologist) 

examined N.M.’s eyes and saw thousands of retinal hemorrhages. In Dr. 

Larson’s opinion, the retinal hemorrhages were consistent with “nonaccidental head trauma, shaking or impact.” Id. at 5216-17. 

 E. Dr. Frasier’s Report 

N.M.’s treating doctors suspected abuse, prompting administrators to 

contact Dr. Laurie Frasier, a pediatrician whose job involved the 

assessment of medical information in cases of suspected abuse. Dr. Frasier 

examined N.M., reviewed the CT scan and medical records, and spoke with 

Dr. Walker and N.M.’s father. Dr. Frasier concluded that N.M. “ha[d] 

been subjected to abusive head injury” due to violent shaking “with 

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possible impact.” Id. at 139. Dr. Frasier added that the injury had likely 

taken place after the boy’s drop-off at daycare: 

[N.M.] would not have been normal for any period of time after 

the event . . . . A reasonable caregiver would have known 

immediately that [N.M.] was experiencing severe symptoms 

. . . . If he was normal . . . when he was dropped off (even if 

he was a little bit sleepy) this would not be consistent with a 

severe head injury before or at the time that he was left with 

the babysitter. 

Id. 

 In reaching her assessment, Dr. Frasier did not consider the results of 

Dr. Pysher’s pathology report, which showed prior bleeding in N.M.’s 

brain. 

 F. Arrest of Ms. Tiscareno 

 Ms. Tiscareno was arrested for child abuse based on 

 N.M.’s arrival at daycare in seemingly good health without 

visible signs of injury, 

 Ms. Tiscareno’s status as the only adult with N.M. between his 

arrival at daycare and the absence of any other person capable 

of causing the injuries, 

 consistency of the head injury with abusive trauma, 

 Dr. Frasier’s conclusion that N.M. had likely been injured after 

arriving at daycare, 

 small scratch marks on N.M.’s chest, and 

 Ms. Tiscareno’s admission that she had shaken N.M. (although 

she had claimed the shaking was an attempt to save N.M.’s 

life). 

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Id. at 3174-78. 

G. First Trial 

 Ms. Tiscareno went to trial on felony and misdemeanor charges of 

child abuse. Ms. Tiscareno’s defense was that N.M. had an old injury that 

created a hematoma and re-bled. Ms. Tiscareno’s counsel relied primarily 

on the results of the CT scan showing evidence of past bleeding. Though 

the pathology report also showed past bleeding, the hospital had not 

furnished that report to the prosecution or the defense. Thus, Ms. 

Tiscareno’s attorney was unable to utilize the pathology report during trial. 

The jury found Ms. Tiscareno guilty of felony child abuse. Before 

the trial court entered a judgment of conviction, Ms. Tiscareno moved to 

arrest the judgment based on erroneous jury instructions. After filing that 

motion, Ms. Tiscareno became aware of the pathology report and obtained 

the report from the hospital. With the pathology report, Ms. Tiscareno 

filed a second motion for a new trial. That motion was based on her 

discovery of the pathology report. 

The trial court granted the motion to arrest the judgment and granted 

Ms. Tiscareno a new trial based on erroneous jury instructions.1

 Relying 

on this ground, the court did not address the second motion (which 

involved the pathology report). 

 

1

 The court also concluded that the absence of an objection was not 

fatal because defense counsel was ineffective. 

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 H. Second Trial 

 Ms. Tiscareno was given a new trial. She again defended on the 

ground that N.M.’s injuries had resulted from a preexisting hematoma that 

suddenly re-bled. But, by the second trial, Ms. Tiscareno had obtained the 

pathology report. Thus, in the second trial, Ms. Tiscareno was able to 

utilize this report to show past bleeding. The court ultimately found Ms. 

Tiscareno not guilty and entered a judgment of acquittal. 

II. Denial of Summary Judgment Based on Qualified Immunity 

In the subsequent action, the defendants moved for summary 

judgment based in part on qualified immunity. The district court rejected 

the defendants’ arguments, concluding that genuine issues of material fact 

remained. 

III. Jurisdiction 

 The Tiscarenos argue that we lack jurisdiction because the 

defendants ask us to second-guess the district court’s factual-sufficiency 

determinations. We disagree. 

 As the Tiscarenos state, we cannot second-guess the district court’s 

determinations on factual sufficiency. See Medina v. Cram, 252 F.3d 

1124, 1130 (10th Cir. 2001). But, we can review the narrow legal question 

before us: Do the facts accepted by the district court show the violation of 

a clearly established constitutional right? See Pahls v. Thomas, 718 F.3d 

1210, 1228 (10th Cir. 2013). 

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In conducting this limited review, we analyze the facts in a light 

favorable to the Tiscarenos. Medina, 252 F.3d at 1128. In doing so, we 

will not question the district court’s factual findings unless they are clearly 

contradicted by the record. Lewis v. Tripp, 604 F.3d 1221, 1225-26 (10th 

Cir. 2010). 

IV. Qualified Immunity 

Dr. Frasier and IHC argue that there is no evidence they violated a 

clearly established constitutional right. 

A. Malicious Prosecution (Dr. Frasier) 

On the malicious prosecution claim against Dr. Frasier, the plaintiffs 

must show the absence of probable cause for Ms. Tiscareno’s arrest or 

continued prosecution. See Wilkins v. Reyes, 528 F.3d 790, 799 (10th Cir. 

2008). We conclude that there was probable cause at every stage of the 

prosecution; thus, Dr. Frasier cannot incur liability for malicious 

prosecution. 

Probable cause exists when the facts and circumstances show a 

“substantial probability that a crime has been committed and that a specific 

individual committed the crime.” St. John v. Justmann, 771 F.2d 445, 448 

(10th Cir. 1985). Probable cause “must be evaluated as of the events in 

question.” Pierce v. Gilchrist, 359 F.3d 1279, 1294 (10th Cir. 2004). 

Thus, an eventual acquittal does not (in itself) show a lack of probable 

cause. Id.

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Based on the evidence presented on summary judgment, we conclude 

that there was probable cause to support the charges of child abuse. The 

evidence shows that 

 N.M. was in Ms. Tiscareno’s sole care when bleeding began in 

the brain, which N.M.’s treating doctors attributed to violent 

shaking, 

 

 the injury was so severe that N.M. would have shown 

immediate signs of injury, but he had been in seemingly good 

health upon his arrival at daycare,2

 and 

 Ms. Tiscareno told police that she had shaken N.M. in an 

attempt to revive him. 

Together, the evidence creates probable cause to believe Ms. Tiscareno 

committed child abuse. See Kerns v. Bader, 663 F.3d 1173, 1180, 1188-90 

(10th Cir. 2011) (concluding that officers had probable cause to arrest even 

though the prosecutor ultimately dismissed the charges). 

According to the Tiscarenos, police and prosecutors based their 

assessment of probable cause on Dr. Frasier’s “fabricated” medical 

opinions and without the benefit of the pathology report, which showed 

evidence of prior bleeding in N.M.’s brain. We disagree because probable 

cause would have existed even without the allegedly fabricated opinions 

and with the pathology report. 

 

2

 At least one other physician had told Detective Leatham that “the 

symptoms would like [sic] have manifested shortly after the infliction of 

the injury.” Joint App. at 5259. 

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When false information has been allegedly included in a probable 

cause analysis, we review for probable cause without that information. Id.

at 1188. Applying this standard, we conclude that probable cause would 

have existed even without Dr. Frasier’s disputed opinions. 

The Tiscarenos also assert that the pathology report would have 

precluded probable cause. We disagree. Even with the report, probable 

cause would have remained. 

When correct information has been excluded from a probable cause 

analysis, we review for probable cause as if that information had been 

included. Id. 

As discussed above, the pathology report shows that a blood clot in 

N.M.’s brain contained an iron deposit left behind when the body had reabsorbed blood. The iron deposit shows that N.M.’s brain had bled on a 

prior occasion. To the Tiscarenos, this evidence indicates that 

● N.M.’s brain injury resulted from a preexisting hematoma that 

 re-bled, and 

● someone other than Ms. Tiscareno could have caused the 

 hematoma. 

But, even if the pathology report supported the plaintiffs’ theory, there was 

other proof that Ms. Tiscareno had shaken N.M. 

This proof consisted of observations during surgery by Dr. Walker, 

analysis of the bleeding by the physician that wrote the pathology report, 

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and opinions by two ophthalmologists regarding the existence and 

significance of the retinal hemorrhages. 

Dr. Walker, N.M.’s neurosurgeon, attributed the injury to violent 

shaking and observed no evidence of a preexisting hematoma. When asked 

about the traces of hemosiderin in N.M.’s brain, Dr. Walker opined that it 

would be normal to find traces of hemosiderin in the brain of a child who 

is learning to walk. Dr. Walker added: “It doesn’t take much to get a little 

bit of old blood. I think it happens to everyone.” Joint App. at 922. 

Dr. Pysher, the author of the pathology report, emphasized that 

Dr. Walker’s observations “would be key to understanding what was 

present on the child’s brain in the form of old versus new blood.” Id. at 

5613. Dr. Pysher also noted that there was “much more” evidence of fresh 

blood in the clot sample than the “microscopic” traces of older bleeding. 

Id. 

Two ophthalmologists also concluded that the injury had resulted 

from shaking. Dr. Larson, who examined N.M. at the hospital, noted 

“thousands” of retinal hemorrhages, which he concluded were consistent 

with “non-accidental head trauma, shaking or impact.” Id. at 5216. 

Dr. Alex Levin, who studied N.M.’s medical file, concluded that the retinal 

hemorrhages were likely caused by shaking and discounted the idea that 

the damage could have been caused by a re-bleeding hematoma. 

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With the testimony by these four physicians, probable cause would 

have remained even with the pathology report’s additional evidence of past 

bleeding. Thus, a reasonable trier of fact could not have found malicious 

prosecution even with the Tiscarenos’ version of the facts. See V.S. v. 

Muhammad, 595 F.3d 426, 428-29, 432 (2d Cir. 2010).3

 As a result, Dr. 

Frasier is entitled to qualified immunity on this claim.4

 

3

 The Second Circuit Court of Appeals addressed a similar issue in 

V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010). There, an infant (V.S.) 

suffered a fractured femur and skull and retinal hemorrhages (diagnosed as 

a shaken baby syndrome). V.S., 595 F.3d at 428. A state agency attributed 

the injuries to abuse by the mother, obtained temporary removal of the 

infant, and proceeded with child abuse charges. Id. at 428-29. Before the 

court rendered a decision, however, the agency withdrew all allegations 

against the mother. Id. at 429. She sued, claiming a constitutional 

violation through malicious prosecution. Id. 

 The agency requested summary judgment. Id. at 429. The district 

court held that a ruling on qualified immunity should await further 

discovery. Id. at 430. The Second Circuit Court of Appeals reversed, 

holding that the agency was entitled to summary judgment based on 

qualified immunity. Id. at 431. The court reasoned that the agency could 

reasonably rely on the diagnosis of shaken baby syndrome by two 

physicians who had based their diagnoses on retinal hemorrhages, a 

common indicator of shaken baby syndrome. Id. at 431. Doing so, the 

court discounted the fact that the agency had failed to disclose to the 

family court that V.S.’s mother had custody of the infant during much of 

the relevant period. Id. Similarly, the court held that the agency was 

entitled to qualified immunity even though one of the agency’s supervisors 

had failed to disclose to the family court that one of the physicians had 

said she no longer believed that the mother had injured the infant. Id. at 

429. 

4

 Dr. Frasier also argues that she has absolute immunity. We need not 

address Dr. Frasier’s assertion of absolute immunity because we conclude 

that she is entitled to qualified immunity. 

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B. Brady Claim (Dr. Frasier and IHC) 

The plaintiffs also claim that Dr. Frasier and IHC withheld the 

pathology report in violation of the right to a fair trial under Brady v. 

Maryland, 373 U.S. 83 (1963). There the Supreme Court held that 

government agents cannot withhold material exculpatory evidence upon 

request by a defendant. Brady, 373 U.S. at 87. 

Dr. Frasier and IHC present different arguments on the Brady claim. 

Dr. Frasier argues that Ms. Tiscareno was not deprived of a fair trial 

because she was not convicted, and IHC argues that it had no clearly 

established duty to locate and disclose potentially exculpatory evidence. 

We agree with both arguments; thus, Dr. Frasier and IHC are entitled to 

qualified immunity. 

1. Absence of a Conviction (Dr. Frasier) 

Dr. Frasier argues that Ms. Tiscareno was not deprived of any rights 

under Brady because there was no conviction. In support, Dr. Frasier cites 

Morgan v. Gertz, 166 F.3d 1307 (10th Cir. 1999). We agree that Ms. 

Tiscareno was not deprived of a fair trial absent a conviction. 

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The Tiscarenos argue that we cannot consider this argument because 

Dr. Frasier failed to include the issue in her answer or motion for summary 

judgment.5

The Tiscarenos’ reliance on Dr. Frasier’s answer is misguided. Dr. 

Frasier is relying on the absence of a conviction as a basis for qualified 

immunity, and she did plead qualified immunity in the answer. Appellees’ 

Supp. App., vol. I, at 112. 

Dr. Frasier’s omission of this argument in her summary judgment 

motion would ordinarily preclude appellate review. See Fairchild v. 

Workman, 579 F.3d 1134, 1144 (10th Cir. 2009) (“[W]e ordinarily do not 

decide issues raised for the first time one appeal.”). But, we may consider 

new arguments when they involve a matter of law and the proper resolution 

is certain. Geddes v. United Staffing Alliance Emp. Med. Plan, 469 F.3d 

919, 931 (10th Cir. 2006). Dr. Frasier’s new argument on appeal meets 

these criteria: The argument involves a pure matter of law, and its 

resolution is certain. 

In Morgan v. Gertz, we held that in the absence of a conviction, a 

defendant “cannot be said to have been deprived of the right to a fair 

trial.” 166 F.3d 1307, 1310 (10th Cir. 1999); see also Livers v. Schenck, 

700 F.3d 340, 359 (8th Cir. 2012) (stating that a Brady claim requires a 

 

5 The Tiscarenos point out that Dr. Frasier violated 10th Cir. R. 

28.2(C)(2) by failing to cite where this issue had been raised and decided 

in district court.

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conviction); Flores v. Satz, 137 F.3d 1275, 1278-79 (11th Cir. 1998) 

(same); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 

1988) (same). 

The Tiscarenos have invoked Brady based on allegations that Dr. 

Frasier withheld exculpatory evidence and fabricated evidence. But, as 

discussed above, Ms. Tiscareno was not convicted. 

 The plaintiffs point out that Ms. Tiscareno was found guilty in the 

first trial. Although the jury found guilt, the trial court never entered a 

judgment of conviction. And, “[a] conviction is effective only upon entry 

of judgment by the trial court.” Morgan, 166 F.3d at 1310.6

 Thus, even 

with the finding of guilt, Ms. Tiscareno was never convicted of a crime. 

 Because Ms. Tiscareno was not convicted of a crime, Brady does not 

apply. As a result, Dr. Frasier is entitled to qualified immunity on the 

Brady claim. 

2. Clearly Established Obligation (IHC) 

IHC argues that it had no clearly established constitutional obligation 

to locate and disclose the pathology report. We agree. The Tiscarenos 

 

6 In Morgan, the jury rendered a guilty verdict, but the trial court 

entered a judgment of acquittal. 166 F.3d at 1308-10. Though the jury 

found the defendant guilty, we held that the claimant could not recover for 

a Brady violation because there was never a judgment of conviction: “The 

only judgment the court entered was a judgment of acquittal. Regardless 

of any misconduct by government agents before or during trial, a defendant 

who is acquitted cannot be said to have been deprived of the right to a fair 

trial.” Id. at 1310.

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have not identified any authority that would have imposed such an 

obligation.7

For purposes of qualified immunity, a constitutional right is “clearly 

established” if the law at the time of the defendant’s conduct would have 

provided “‘fair warning’” to the defendant. Pierce v. Gilchrist, 359 F.3d 

1279, 1298 (10th Cir. 2004) (quoting Hope v. Pelzer, 536 U.S. 730, 741 

(2002)). For IHC, we ask if a private hospital under contract with the state 

would have had fair warning of an independent constitutional duty to 

locate and disclose medical evidence. No such warning would have been 

evident at the time. 

A private hospital like IHC could have expected the prosecution to 

bear an obligation to disclose exculpatory evidence to the defense. See 

Brady v. Maryland, 373 U.S. 83, 87 (1963). And, the private hospital 

could have anticipated extension of this obligation to law enforcement 

officials and state agencies investigating crimes. See, e.g., Pierce, 359 

F.3d at 1281, 1298 (holding that a forensic chemist with the police 

department incurred liability under § 1983 for withholding exculpatory 

evidence and fabricating evidence); Smith v. Sec’y of N.M. Dep’t of Corr., 

50 F.3d 801, 824 (10th Cir. 1995) (explaining, while reviewing a habeas 

petition, that “the ‘prosecution’ for Brady purposes encompasses not only 

 

7 IHC also argues that it is not a state actor and that we have pendent 

appellate jurisdiction to address this argument. We need not decide 

whether IHC is a state actor because it has qualified immunity.

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the individual prosecutor handling the case, but also extends to . . . other 

arms of the state involved in investigative aspects of a particular criminal 

venture”).8

 But, as of the time of the first trial (October 2004), neither the 

Supreme Court nor our court had extended Brady to private hospitals under 

contract with the state. 

The Tiscarenos argue that IHC had a clearly established Brady

obligation based on our opinions in Pierce v. Gilchrist and Smith v. Sec’y 

of N.M. Dep’t of Corr. Their reliance on these opinions is misplaced. 

In Pierce, we held that a forensic chemist employed by a police 

department would have had fair warning that falsifying or withholding 

evidence would violate a defendant’s right to a fair trial. 359 F.3d at 

1299-1300. The case concerned the obligation of an individual working 

with the police in the investigation, not a hospital’s obligation to assist in 

an investigation related to its primary function of providing healthcare. 

Pierce would not have given IHC fair warning that it had a Brady

obligation. 

In Smith, we stated that Brady obligations can extend to certain 

“arms of the state” involved in an investigation. Smith, 50 F.3d at 824 

n.35. But, as of the time of the first trial, neither the Supreme Court nor 

 

8 Although the Tiscarenos argue that Dr. Frasier could qualify as an 

arm of the state investigating crimes, we need not consider this argument. 

As discussed above, Dr. Frasier has elsewhere established that she is 

eligible for qualified immunity because Ms. Tiscareno was never 

convicted.

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our court had treated private hospitals as an “arm of the state” for purposes 

of Brady. 

Because a private hospital had no clearly established obligation to 

locate and disclose exculpatory evidence, IHC is entitled to qualified 

immunity on the Brady claim. 

V. Conclusion 

 Dr. Frasier and IHC are entitled to qualified immunity. As a result, 

we reverse the district court’s denial of their summary judgment motions 

and remand with instructions to grant these motions based on qualified 

immunity. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

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13-4156, Tiscareno v. Frasier; 13-4161, Tiscareno v. IHC Health Services

BRISCOE, Chief Judge, concurring.

I agree with the majority that Ms. Tiscareno cannot succeed in her pursuit of a

Brady claim against Dr. Frasier because her criminal trial did not result in a judgment of

conviction. In Morgan v. Gertz, 166 F.3d 1307 (10th Cir. 1999), we held that “the

withholding or destruction of evidence violates a criminal defendant’s constitutional

rights only if, as a result of the withholding or destruction of evidence, the criminal

defendant is denied a fair trial.” Id. at 1310. However, “[r]egardless of any misconduct

by government agents before or during trial, a defendant who is acquitted cannot be said

to have been deprived of the right to a fair trial.” Id. Here, because the only judgment

entered by the court in Ms. Tiscareno’s case was a judgment of acquittal, Ms. Tiscareno

has not been deprived of her right to a fair trial. As a result, her Brady claim fails. 

Although this argument was not raised by Dr. Frasier before the district court, it presents

a purely a legal issue that we can resolve on undisputed facts. Our failure to reach this

issue would, in my view, result in manifest injustice by permitting a baseless claim to

proceed. Allowing this Brady claim to proceed would also result in a further waste of

judicial resources and undermine the spirit of qualified immunity. See Pearson v.

Callahan, 555 U.S. 223, 237 (2009) (“Qualified immunity is an immunity from suit rather

than a mere defense to liability.” (internal quotations omitted)).

Contrary to the majority, however, I would not rely on IHC’s argument that it had

no clearly established duty to locate and disclose potentially exculpatory evidence to

grant IHC qualified immunity. As I understand Ms. Tiscareno’s argument, she asserts

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that because Dr. Frasier participated in the investigation of this case on behalf of IHC,

IHC had a responsibility under Brady to locate and disclose the pathology report. But the

district court concluded that there was a factual dispute as to whether Dr. Frasier was

acting as an agent of IHC under the state contract and as to whether Dr. Frasier was

sufficiently involved in the investigation to be considered part of the prosecution. Rather

than wade into that factual morass, I would assume for purposes of IHC’s qualified

immunity motion that Dr. Frasier was working on behalf of IHC and then conclude that

because Dr. Frasier is entitled to qualified immunity, so too is IHC as regards Ms.

Tiscareno’s argument that IHC’s liability arises from Dr. Frasier’s actions. Without a

Brady violation, Ms. Tiscareno “cannot be said to have been deprived of [her] right to a

fair trial,” Morgan v. Gertz, 166 F.3d at 1310; and in the absence of a constitutional

violation by Dr. Frasier, IHC cannot be held liable under § 1983. See Estate of Larsen ex

rel. Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir. 2008); Dubbs v. Head Start, Inc.,

336 F.3d 1194, 1216-17 (10th Cir. 2003); Olsen v. Layton Hills Mall, 312 F.3d 1304,

1317-18 (10th Cir. 2002); see also Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151

(10th Cir. 2006).

However, IHC did not actually argue that it cannot be held liable because no

constitutional violation occurred, only Dr. Frasier argued that. Generally, this failing

would preclude us from relying on this argument. Richison v. Ernest Group, Inc., 634

F.3d 1123, 1131 (10th Cir. 2011) (Where a party “fail[s] to argue for plain error” on

appeal, that “marks the end of the road for an argument for reversal not first presented to

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the district court.”). But if the premise of Ms. Tiscareno’s argument is that IHC is liable

because Dr. Frasier was acting on IHC’s behalf, then I think an argument can be made

that because Dr. Frasier raised this argument (and Ms. Tiscareno had the opportunity to

respond to it), we can apply the same analysis to IHC’s appeal. And given that we know

Ms. Tiscareno’s Brady claim fails as a matter of law, the claim against IHC should also

fail. See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions

may be taken up and resolved for the first time on appeal is one left primarily to the

discretion of the courts of appeals,” and “[c]ertainly there are circumstances in which a

federal appellate court is justified in resolving an issue not passed on below, as where the

proper resolution is beyond any doubt, . . . or where injustice might otherwise result.”

(internal quotations and citations omitted)); Sussman v. Patterson, 108 F.3d 1206, 1210

(10th Cir. 1997) (“‘[W]e may depart from [the general waiver rule] in our discretion,

particularly when we are presented with a strictly legal question, the proper resolution of

which is beyond doubt or when manifest injustice would otherwise result.’” (quoting

Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992))).

While I rely on a different rationale to address IHC’s appeal, I concur in the result

reached by the majority in both appeals.

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