Can a court clerk be held liable under section 821.6 of the California Criminal Code for failing to file a criminal complaint against plaintiff?

It is immaterial that the final decision to issue the criminal complaint against plaintiff was made by the district attorney. It is classic law in the field of malicious prosecution that 'one who procures a third person to institute a malicious prosecution is liable, just as if he instituted it himself.' (2 Witkin, Summary of California Law (7th ed. 1960) 90, p. 1261, and cases cited.) In Watson v. County of Los Angeles (1967) 254 Cal.App.2d 361, 62 Cal.Rptr. 191, ¹ we held that section 821.6 operated to grant immunity to two court clerks whose negligent keeping of records had resulted in plaintiff being arrested and incarcerated. We there said (at page 363, 62 Cal.Rptr. at p. 192): 'Their acts or omissions * * * can be considered as 'instituting or prosecuting' a 'judicial proceeding,' in that their behavior provides the first steps towards plaintiff's arrest and incarceration and clearly were steps involved in the 'prosecution' of that proceeding.' The same reasoning is applicable here.