
    Frederick R. DAYE, Plaintiff-Appellant, v. Frank ZELLMER, individually and in his capacity as police officer for the City of San Diego; City of San Diego; James Stevens, individually and in his official capacity as police officer, Defendants-Appellees and Sandy Beverly, Michael Yaptango; Wanda Hernacki; Daniel E. Williams, individually and in their capacity as police officers for the City of San Diego, California; Steven A. Munkelt; Jefferey Steutz; Thomas Miles; Does 1-100, inclusive; the State of California; County of San Diego, Defendants.
    No. 99-56255.
    D.C. No. CV-95-01011-JTM.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 9, 2001.
    Decided May 8, 2001.
    
      Before KOZINSKI and TALLMAN, Circuit Judges, and WINMILL, District Judge.
    
    
      
       The Honorable B. Lynn Winmill, United States Chief District Judge for the District of Idaho, sitting by designation.
    
   MEMORANDUM

The district court denied Daye’s motion in limine to exclude the photograph and its fruits on the ground that the exclusionary rale does not apply to a civil suit brought under 42 U.S.C. § 1983. See Townes v. City of New York, 176 F.3d 138, 149 (2d Cir.1999) (“[T]he fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.”); Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir.1997) (exclusionary rule does not apply in a § 1983 action). Daye does not appeal the denial of his motion in limine, and so we must assume that the evidentiary ruling was correct. As such, the district court did not err in denying Daye’s proposed jury instruction, because it would have inaccurately stated the law of the case. See Kennedy v. Southern Cal. Edison Co., 219 F.3d 988, 997 (9th Cir.2000).

The district court properly dismissed Daye’s claim for malicious prosecution because the prosecutor had exercised independent judgment. See Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988). The prosecutor interviewed the victim himself and relied on police reports containing neither false information nor material omissions.

Daye’s other claims have no merit. The evidence of his incarceration and subsequent exoneration was irrelevant to probable cause, and even if relevant to damages, the exclusion was harmless because of the verdict in favor of the officers. Daye’s Monell claim also fails because of the verdict.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
     