Opinion
Civil No. 00-919-AS
March 22, 2001
FINDINGS AND RECOMMENDATION
Defendants Bradley A. Johnston ("Johnston"), Robert Hahn ("Hahn"), City of Astoria (the "City") and County of Clatsop (the "County") (collectively "Defendants") move for summary judgment against the claims asserted against them by Plaintiff August L. Mason ("Plaintiff") in his complaint filed in this court on June 30, 2000. Defendants argue that Plaintiff is unable to prove his claims for unreasonable search and seizure under § 42 U.S.C. § 1983 or, in the alternative, that Defendants are entitled to qualified immunity with regard to these claims. Additionally, Defendants contend that Plaintiff has failed to present sufficient evidence to support his common law claims for battery and malicious prosecution.
Originally, Plaintiff stated a claim for retaliation in his complaint as well. He represented to the court in his opposition to the summary judgment motion that he does not oppose partial summary judgment on that claim.
BACKGROUND
A careful review of the deposition transcripts, affidavits and evidence presented by the parties reveals that very few material facts are undisputed. The following is a summary of these undisputed facts.
On July 4, 1998, Plaintiff was driving through Astoria in his 1981 Chevrolet El Camino. Johnston, a police sergeant employed by the City, stopped Plaintiff for traveling at a speed of 40 miles per hour in a 20 mile per hour zone. Johnston was in uniform and on patrol at the time.
Johnston asked Plaintiff for his registration and proof of insurance. Plaintiff provided the registration but was unable to produce valid proof of insurance. Instead, he produced an expired proof of insurance and explained that he had recently called his insurance company to renew the policy and add the El Camino to the coverage. Plaintiff was unable to provide any evidence of the renewal of the policy.
Johnston returned to his patrol car and attempted to call Plaintiff's insurance company. He was unable to confirm the renewal of Plaintiff's insurance because it was after hours on Saturday and the office was closed. Johnston then wrote Plaintiff a citation for violation of the basic rule (speeding) and for driving without proof of insurance and returned to Plaintiff, who was standing by his car.
At the car, Johnston asked Plaintiff some additional questions about his insurance. As a result of discrepancies in Plaintiff's explanation regarding the status of his insurance, Johnston concluded that the El Camino was uninsured. He revised the citation to allege a violation of driving uninsured rather than driving without proof of insurance.
About this time, Hahn, a sergeant employed by the Clatsop County Sheriff's Office, drove past Plaintiff and Johnston. Hahn radioed Johnston and asked if he needed assistance. Johnston indicated that he wanted assistance and Hahn returned to the scene of the stop.
Plaintiff sat down in the driver's seat of his car. At some point, Johnston pulled his gun out of his holster and held the gun to Plaintiff's head. Johnston attempted to remove Plaintiff from the car and a struggle ensued. During the struggle, Hahn sprayed Plaintiff with mace.
Plaintiff was eventually removed from the car by Johnston, who threw him up against the car and then to the ground, where he was handcuffed and searched for weapons.
Johnston noticed that Plaintiff was bleeding about the face after the struggle and transported Plaintiff to the local hospital. Plaintiff had complained that he thought he might be having a stroke and was examined and tested throughly by the hospital staff. He was released later that day. Johnston impounded the El Camino and issued Plaintiff a second citation for resisting arrest and interfering with a police officer.
On July 6, 1998, Plaintiff supplied valid proof of insurance for his car and retrieved his vehicle from the impound lot. Plaintiff noticed a dent in the left side of the El Camino by the rear wheel well.
At Plaintiff's trial, the municipal judge dismissed the charge of interfering with a police Officer. The Judge indicated that the conduct alleged was a violation of a state statute not adopted by the City and that he lacked jurisdiction over that charge. Additionally, the charge of driving uninsured was dismissed when Plaintiff provided valid proof of insurance. A jury found Plaintiff not guilty of resisting arrest and Plaintiff was eventually convicted of violating the basic rule (speeding).
Plaintiff does not remember whether he pled guilty to the charge or was found guilty by the court at trial. The fact that we was convicted of the violation, however, is not in dispute.
The additional facts offered by both parties vary greatly. According to Johnston, Plaintiff got irate when he was told that he was going to get a ticket. While Johnston was at his patrol car checking on Plaintiff's insurance, Plaintiff got in his car and started the engine. Upon returning to the car, Johnston asked Plaintiff, who was standing by the left rear wheel, to turn off his engine. Plaintiff refused and demanded that Johnston just give him his ticket so that he could go. Plaintiff yelled obscenities at Johnston and grabbed for the ticket. When Johnston advised Plaintiff that he thought that he was driving uninsured and that he was going to impound his vehicle, Plaintiff said "The hell you are," entered the vehicle and started revving the engine. Johnston stepped in front of the driver's car door to prevent Plaintiff from leaving. He then reached across the front seat to grab the keys in the ignition and turn the car off. As Johnston threw the car keys out of Plaintiff's reach, he noticed Plaintiff reaching for something under the seat. Thinking that Plaintiff was reaching for a gun, Johnston pushed him back with his hand, drew his gun and pointed it at Plaintiff. Upon discovering that Plaintiff was merely reaching for something that had fallen off the key chain, Johnston placed his gun back in the holster.
Johnston grabbed Plaintiff's left arm in an attempt to remove him from the car. Plaintiff pulled his arm away and Hahn sprayed Plaintiff with mace. Plaintiff laid back on the seat with his hands in his face kicking at the officers. When Plaintiff sat back up, Johnston again grabbed Plaintiff's left arm and successfully pulled him out of his vehicle. Plaintiff continued to resist the officers, despite orders from the officers to put his hands behind his back. Johnston forcefully took Plaintiff to the ground, where he was handcuffed and searched. Plaintiff was transported to the local hospital after Johnston noticed blood and a bruising pattern on Plaintiff's face. Plaintiff complained he might be having a stroke while at the hospital.
Hahn's testimony corroborates that of Johnston. He states that he sprayed Plaintiff with mace when Plaintiff refused to get out of the car.
Plaintiff's version is dramatically different. He states that he while he was trying to explain his insurance coverage to Hahn near the driver's door of his vehicle, Johnston pulled his gun, held it to Plaintiff's face at close range and ordered Plaintiff to turn his engine off.
At this point, Plaintiff recognized Johnston from a prior incident at his union hall, during which Johnston became extremely angry without provocation and threatened to shoot another union member. Plaintiff became frightened and light-headed and thereafter attempted to comply with Johnston's directives. Plaintiff got into the driver's seat of the car and turned the engine off. Johnston reached into the passenger area of the car, began striking Plaintiff's arms and hands and grabbed the keys out of his hand.
Hahn then sprayed Plaintiff with mace causing Plaintiff to suffer from difficulty in breathing and intense pain. Plaintiff was pulled from the car and slammed into the rear quarter panel and then thrown face first to ground. Plaintiff lost consciousness for a period of time and when he woke up, he was pinned to the ground by Johnston's knee in his back. Plaintiff advised the officers that he thought he was suffering from a stroke, felt dizzy and had some numbness in this left side.
Plaintiff declares that:
At no time did I yell obscenities during this interaction. I never refused any orders for directives of defendants. I did not threaten defendants in any way, use force against defendants or initiate physical contact. They never informed me that I was under arrest. I did not interfere with defendants or resist any arrest. I did not commit the crimes of resisting arrest or interfering with a police officer.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
In his Section 1983 claim, Plaintiff alleges that Defendants violated his constitutional rights under the Fourth Amendment to be free from unlawful search and seizure. Specifically, Plaintiff argues that his rights were violated when he was stopped for speeding, arrested and searched and when his car was towed. He also contends that Johnston and Hahn used excessive force when they placed him under arrest.
42 U.S.C. § 1983 provides, in pertinent part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
"To state a cause of action under § 1983 it is essential that the defendant has acted under color of state law." Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 312 (9th Cir. 1974) (citing Adickes v. S. H. Kress Co., 398 U.S. 144, 188 (1970) (Brennan, J., concurring opinion)). When plaintiff is relying on a "custom" of the defendant, the practices of the government officials must be "so permanent and well-settled as to constitute a custom or usage' with the force of law." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91 (1977). Plaintiff must identify the challenged policy, connect it with the defendant, and establish that he suffered his particular injury as a result of the implementation of that policy. Id.
Fourth Amendment Seizures
Police seizures of individuals generally fall into one of two categories. First, a police officer may conduct a brief stop for investigatory purposes when the officer has only "reasonable suspicion" to believe the stopped individual has committed wrongdoing. Terry v. Ohio, 392 U.S. 1, 23-27 (1968). Second, a police officer may arrest an individual when the officer has probable cause to believe the individual has committed a crime. Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1996).
Initial Stop
The testimony establishes that Plaintiff was initially stopped for speeding. Johnston testified that he saw Plaintiff traveling 40 miles per hour in a 20 mile per hour zone. While Plaintiff states that he was not speeding, he was eventually convicted of this offense, which supports Johnston's testimony.
Under O.R.S. 810.410(3)(b), "[a] police officer * * * may stop and detain a person for a traffic violation for the purposes of investigation reasonably related to traffic violation, identification and issuance of citation." Johnston had, at the least, a reasonable suspicion that Plaintiff was speeding. Accordingly, under both Oregon law and the United States Constitution, Johnston was justified in stopping and detaining Plaintiff long enough to identify Plaintiff and investigate the illegal conduct.
Johnston was justified in asking Plaintiff for his identification and proof of insurance and in issuing Plaintiff a citation for violation of the basic rule. Additionally, when Plaintiff was unable to provide proof of insurance and was equivocal in his explanation of why he didn't have valid proof of insurance, Johnston had reason to believe that Plaintiff did not have insurance for the El Camino. Johnston was justified in issuing Plaintiff a citation for driving uninsured.
Arrest
Johnston stated that he arrested Plaintiff for interfering with a police officer and for resisting. It is undisputed that Johnston and Hahn did not have a warrant to arrest Plaintiff. However, a warrantless arrest is valid if supported by probable cause. United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989). "Probable cause exists when, under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999). The facts and circumstances relevant to a probable cause inquiry are those known to the police at the time of the arrest. United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298, n. 2 (9th Cir. 1988).
Based on the evidence provided by Johnston and Hahn, the arrest of Plaintiff was clearly warranted. Plaintiff was verbally abusive to Johnston, he refused to follow the directions of the officers and he forcefully resisted the officers attempts to remove him from the car and handcuff him. However, Plaintiff presents a totally different picture. Plaintiff states that he never swore at Johnston, he attempted to follow the directions of the officers and he did not physically resist Arrest. There is clearly a genuine issue of material fact with regard to whether the officers had probable cause to believe that Plaintiff had committed at crime. Viewing the facts in the light most favorable to the Plaintiff, Johnston and Hahn had no cause to arrest Plaintiff.
Excessive Force
Plaintiff also contends that the force used by Johnston and Hahn in placing him under arrest was unreasonable and excessive in violation of his rights under the Fourth Amendment. It is fundamental that "the use of force to effect an arrest is subject to the Fourth Amendment's prohibition on unreasonable seizures." Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (citing Graham v. Conner, 490 U.S. 386 (1989)). While the "Fourth Amendment proscribes only `unreasonable' searches and seizures, * * * the reasonableness of a search or seizure depends `not only on when it is made, but also how it is carried out.'" Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir. 1994) (quoting Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)). This inquiry is an objective one which generally is reserved for a jury. Chew, 27 F.3d at 1440.
In Graham, the Supreme Court articulated a number of factors which should be taken into account in determining the propriety of a particular use of force. Those factors include: (1) the severity of the crime; (2) whether the plaintiff posed an immediate threat to the safety of the officers or others; and (3) whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. The Ninth Circuit has indicated that these factors are not exclusive and are to be supplemented with other matters such as whether a warrant was used, whether the plaintiff resisted or was armed, whether more than one arrestee or officer was involved, whether the plaintiff was sober, whether other dangerous or exigent circumstances existed at the time of the arrest, and the nature of the arrest charges. Chew, 27 F.3d at 1440, n. 5. In sum, the factfinder must "look to whatever specific factors may be appropriate in a particular case, whether or not listed in Graham, and then must consider whether the totality of the circumstances justifies a particular sort of seizure.'" Franklin, 31 F.3d at 876 (quoting Graham, 490 U.S. at 396).
A genuine issue of material fact exists with regard to Plaintiff's conduct prior to and during the arrest. If Plaintiff followed the directions of the officers at all times and in no way resisted the officers, the officers actions were clearly unreasonable and excessive. However, if Plaintiff was violent in resisting the officers and refused to follow the directions of the officers, the officers actions were very likely justified. Based on the record before the court, this is an issue to be addressed by the ultimate trier of fact. This same analysis applies to Plaintiff's claim for damage to his vehicle during the course of his arrest. If the officers used excessive force in arresting Plaintiff, the damage to the vehicle was unjustified.
Seizure of Vehicle
Plaintiff acknowledges that police officers in Astoria have authority to tow vehicles for violation of failure to carry proof of insurance. However, he argues that Johnston had a policy only to tow vehicles driven by persons who are uninsured and, because he was insured at the time of the stop, Johnston abused his discretion by ordering his vehicle towed.
Plaintiff failed to provide valid proof of insurance. Any police officer within the State of Oregon had the authority to order Plaintiff's vehicle towed. The mere fact that Johnston generally did not tow vehicles in those circumstances does not negate his ability to legally do so. In any event, the court has found that, based on Plaintiff's failure to provide valid proof of insurance and his equivocation in explaining his lack of such proof, Johnston had probable cause to believe Plaintiff was driving uninsured. Consequently, Johnston's impounding of Plaintiff's vehicle was in accordance with his own established procedures and policies and in accordance with the law in the State of Oregon.
Fourth Amendment Search
Plaintiff claims that Johnston and Hahn violated his Fourth Amendment right to be free from unlawful searches when they "patted him down" after his arrest. A search incident to a lawful arrest is a well-established exception to the warrant requirement which may entail both a search of the arrestee and a search of the area within the control of the arrestee. United States v. Robinson, 414 U.S. 218, 224 (1973) ("Robinson"). Here, the court has found that the lawfulness of the arrest needs to be determined by the trier of fact. Accordingly, the lawfulness of the warrantless search incident to that arrest must also be presented to the factfinder in this matter. The court will note that the limited search of Plaintiff's body for weapons in this instance would be justified if incident to a lawful arrest.
Qualified Immunity
Defendants argue that even if they technically violated Plaintiff's Fourth Amendment rights, they are entitled to qualified immunity. Because Plaintiff's claims rise and fall on the determination as to whether his arrest was lawful, this court must analyze Plaintiff's Fourth Amendment claim premised on an unlawful arrest.
Police officers are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified immunity defense allows for errors in judgment and protects "all but the plainly incompetent or those who knowingly violate the law * * *. [I]f [officials] of reasonable competence could disagree on the issue [whether or not a specific action was constitutional], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997) ("Th[e] test allows ample room for reasonable error on the part of the [police officer]").
Qualified immunity is a legal issue to be decided by the court and at the earliest possible time in the litigation. Act Up/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir. 1992). "A court must determine whether, in the light of clearly established principles governing the conduct in question, the [officer] objectively could have believed that his conduct was lawful." Watkins v. City of Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998). Thus, even if a police officer's conduct actually violated a plaintiff's constitutional rights, qualified immunity attaches if the conduct was objectively reasonable. Melear v. Spears, 862 F.2d 1177, 1188 (5th Cir. 1989).
"[I]t is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable."
Anderson v. Creighton, 483 U.S. 635, 641 (1987).
When a police officer asserts qualified immunity at the summary judgment stage, the court must first determine whether the plaintiff has alleged facts which, if true, would constitute a deprivation of a constitutional right at all. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1265 (9th Cir. 1999). "Only then should the court determine whether `the right allegedly implicated was clearly established at the time of the events in question.'" Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)).
Whether defendants are entitled to a qualified immunity defense requires a two-part analysis: "1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable [official] have believed the conduct was lawful?" Ram v. Rubin, 118 F.3d 1306, 1309 (9th Cir. 1997).
As noted above, the determination of whether the facts alleged could support a reasonable belief in the existence of probable cause is a question of law to be determined by this court. Act Up!, 988 Fd2d at 873. However, two types of factual issues may preclude a determination of qualified immunity on summary judgment: (1) the facts and circumstances within the officer's knowledge; and (2) what the officer and plaintiff did or failed to do. Id.
The law is clearly established that a police officer must have probable cause to arrest an individual. As discussed above, fact questions exist as to whether Johnston and Hahn probable cause to arrest Plaintiff. However, even if the officers lacked probable cause, they are not liable if this court determines, based on the undisputed underlying facts, that a reasonable police officer would have believed that he had probable cause to arrest Plaintiff. The undisputed facts show only that Plaintiff was stopped for speeding; he discussed his insurance coverage with Johnston; that he was forcefully removed from his car by Johnston after being sprayed with mace by Hahn; and he was thrown into his car and then to the ground. These undisputed facts do not support a finding that Johnston and Hahn had probable cause to believe that Plaintiff committed the crimes of interfering with an officer or resisting arrest.
Municipal Liability
Defendants contend that neither the City nor the County can be held liable under Plaintiff's Section 1983 claims in the absence of a showing of an official policy or a longstanding practice or custom. Municipalities and other local governmental entities are "persons" within the meaning of Section 1983. Monell v. Dept. of Social Services of New York, 436 U.S. 658, 690-91 (1978). However, a municipality cannot be held liable under a vicarious liability or respondeat superior theory in a Section 1983 action. Id. In order to hold a municipality liable, a plaintiff must prove the individual defendants acted pursuant to a government custom or policy. Id.; City of Oklahoma v. Tuttle, 471 U.S. 808, (1985). Although proof of a single unconstitutional incident may satisfy the policy requirement, it is sufficient only if proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy which policy can be attributed to a municipal policymaker. Tuttle, 471 U.S. at 823-24.
Plaintiff appears to concede that the City and the County cannot be held liable under his Section 1983. He seeks to hold the City and the County liable for the acts of their employees with regard to his state law torts only.
State Law Tort Claims
Individual Liability
Defendants argue that Johnston and Hahn may not be held individually liable for Plaintiff's state law tort claims. Plaintiff alleges, and Defendants concede, that Johnston and Hahn were acting within the course and scope of their employment. The Oregon Tort Claims Act provides that the sole cause of action for any tort committed by employees of a public body acting within the scope of their employment and eligible for representation and indemnification is an action against the public body only. If the action is filed against the individual under these circumstances, the public body is substituted as the only defendant. O.R.S. 30.265(1). Johnston and Hahn should be dismissed from the tort claims under this provision.
Punitive Damages
Defendants assert that Plaintiff is not entitled to an award for punitive damages against the City or the County on its state tort claims. A review of the complaint reveals that Plaintiff is seeking punitive damages against the individual defendants only. In the absence of a prayer for punitive damages against the City and the County, the court recommends denying Defendants' motion for summary judgment on the punitive damage under the state tort law claim as moot.
Battery
Plaintiff alleges a claim of battery. The use of excessive force in effecting an arrest may constitute a battery. Rich v. Cooper, 234 Or. 300 (1963). The court has found that a genuine issue of material fact exists with regard to Plaintiff's excessive force claim. This same analysis applies to Plaintiff's claim for battery.
Malicious Prosecution
Plaintiff asserts a claim for malicious prosecution against both the City and the County based on their respective officers' actions. Defendants seek summary judgment based on a failure to prove the prima facie elements of the tort. Additionally, Defendants seek summary judgment for the County based on Hahn's lack of involvement in writing the citations.
The court agrees that Plaintiff has failed to state a claim for malicious prosecution based on Hahn's conduct. Hahn was present at the scene and assisted Johnston in arresting Plaintiff but he had no involvement in issuing the citation. The County is entitled to summary judgment on the malicious prosecution claim.
Under Oregon law, the tort of malicious prosecution consists of "initiating or procuring criminal proceedings, from an improper motive and without probable cause, against another who is not guilty of the offense charged and who ultimately gains a favorable termination of the proceedings." Rogers v. Hill, 281 Or. 491, 497. The existence of probable cause defeats a malicious prosecution claim. Hartley v. Water Resources Dep't, 77 Or. App. 517, 520, 713 P.2d 1060, rev. denied, 301 Or. 78 (1986). Probable cause to arrest is a question of law if the facts are undisputed. Id. To have probable cause to arrest, the officer must subjectively believe a crime has been committed and that belief must be objectively reasonable under the circumstances. State v. Holliday, 135 Or. App. 256, 259, 898 P.2d 812 (1995).
Johnston wrote the citations initiating the prosecution and the charges against Plaintiff were resolved in his favor. This court has already determined that genuine issues of material fact exist with regard to the existence of probable cause for Plaintiff's arrest. Accordingly, the only element at issue is whether Plaintiff has alleged facts which establish an improper motive.
The only facts alleged by Plaintiff which might be relevant to Johnston's motives are that Plaintiff and Johnston had a run-in the year before at Plaintiff's union hall. Plaintiff testified that he recognized Johnston from this incident and thought Johnston may have been retaliating against him by giving him the citation. However, Johnston testified that, while he thought Plaintiff looked familiar, he did not recognize Plaintiff as the individual involved in the prior incident until some time after the July 4, 1998, arrest. On the other hand, Hahn immediately recognized Plaintiff as an individual who had been in some kind of trouble in the past and had fired a handgun in public.
Plaintiff has presented no evidence to support a finding that Johnston acted with an improper motive when he cited Plaintiff for interfering with an officer and resisting arrest. Accordingly, Plaintiff has failed to establish a claim for malicious prosecution.
Defendant also argues that the Astoria City Prosecutor is absolutely immune from prosecution for his decision to proceed against Plaintiff. While Plaintiff does not appear to allege a claim based on the acts of the prosecutor, the court finds that no action exists.
CONCLUSION
Defendants' motion (#18) for summary judgment should be GRANTED with regard to the initial stop for a traffic violation, the impounding of Plaintiff's vehicle, the City and County's liability under Section 1983, Johnston and Hahn's liability for the state tort claims, and the claim for malicious prosecution, and DENIED in all other respects.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due April 12, 2001. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than April 26, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.