Adams v. Gilliland et al

Filing 78

ORDER: Defendant Kevin Gilliland's Motion for Summary Judgment 67 is granted. The Clerk of Court shall enter final judgment accordingly and close this case. Signed by Judge John J Tuchi on 7/28/2017. (REK)

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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joshua Wood Adams, Plaintiff, 10 11 ORDER v. 12 No. CV-15-01755-PHX-JJT K Gilliland, et al., 13 Defendants. 14 15 At issue is Defendant Kevin Gilliland’s Motion for Summary Judgment (Doc. 67, 16 MSJ), to which Plaintiff Joshua Wood Adams filed a Response (Doc. 72, Resp.), and in 17 support of which Defendant filed a Reply (Doc. 74, Reply). The Court finds these matters 18 appropriate for resolution without oral argument. See LRCiv 7.2(f). 19 I. BACKGROUND 20 In 2013, Plaintiff—a City of Phoenix Police Officer—and his wife, Kristina 21 Adams, were living separately and divorcing, with Mrs. Adams and their three children 22 living in the family home. On November 18, 2013, Mrs. Adams obtained an Order of 23 Protection against Plaintiff from the Maricopa County Superior Court. On the same day, 24 Mrs. Adams went to pick up two of her children from their bus stop and encountered 25 Plaintiff. The two children entered Mrs. Adams’s car and she drove to the family home 26 before driving to her mother, Leigh Douglas’s house, which is roughly 100 yards away 27 from the family home. 28 1 In Ms. Douglas’s driveway, Mrs. Adams called 911 and told the dispatcher that 2 she had obtained an Order of Protection against Plaintiff, who had followed her home, 3 parked behind her, and refused to leave. Mrs. Adams began crying and told the dispatcher 4 that she was blocked in and that Plaintiff was knocking on her window. Eventually, 5 Plaintiff left the scene, driving to a street corner to wait for the police to arrive. 6 Defendant—a deputy with the Maricopa County Sherriff’s Office—responded to 7 the 911 call. When he arrived, Defendant noted that Mrs. Adams was at the family home 8 with her mother, crying, upset, and hesitant to speak. Mrs. Adams reiterated the 9 information she provided to the dispatcher, adding that Plaintiff had called her an idiot 10 and was yelling and banging on the window. While Defendant was speaking to 11 Mrs. Adams, Plaintiff returned to the scene in his vehicle. 12 As Plaintiff approached the home on foot, Defendant stopped Plaintiff, allegedly 13 extending his arm to do so. Plaintiff stated that he needed to obtain items from the home. 14 Defendant explained the information Mrs. Adams had communicated, adding that she 15 had petitioned for an Order of Protection against him. Defendant then asked Plaintiff for 16 identification, and he responded that his identification was in the car. Defendant asked 17 Plaintiff to retrieve it. Plaintiff returned to his vehicle and instead of retrieving his 18 identification, he drove in reverse at up to 25 miles per hour, made a J-turn or fishtail in 19 the intersection, and continued forward down a perpendicular street. Defendant alleges he 20 returned to his marked sheriff’s vehicle, activated the lights and sirens, and pursued 21 Plaintiff. In response, Plaintiff avers that he never saw Defendant because he was 22 traveling in reverse—looking through his rearview mirror—and never heard any sirens. 23 Defendant contends that, at a certain point, he felt it unsafe to continue his pursuit and 24 returned to the family home. 25 While continuing to converse with Mrs. Adams and Ms. Douglas, a mail carrier 26 approached and asked Defendant if he was looking for a silver vehicle, reporting that she 27 saw such a vehicle travelling at 60-65 miles per hour. The postal worker provided a 28 written statement to that effect, noting that the driver was driving unsafely. Mrs. Adams -2- 1 also provided a written statement. Defendant then returned to the station and prepared an 2 Incident Report. Upon review, Defendant’s supervisor approved the report and Defendant 3 submitted the case for charges against Plaintiff for Unlawful Flight (A.R.S. § 28-622.01) 4 and Disorderly Conduct (A.R.S. § 13-2904.A.1). 5 After submitting the case, the City of Phoenix Police Department Professional 6 Standards Bureau (“Phoenix PSB”) interviewed Mrs. Adams, Ms. Douglas, and the 7 postal worker, all of whom largely reiterated their previous narratives. Mrs. Adams and 8 Ms. Douglas, however, stated that they did not witness Plaintiff and Defendant travelling 9 on the same road at the same time. Defendant was not present for the Phoenix PSB 10 interviews, nor was he made contemporaneously aware of any of the statements made 11 therein. The Maricopa County Attorney’s Office later charged Plaintiff with Unlawful 12 Flight and Disorderly Conduct. Both charges were eventually dismissed and Plaintiff 13 filed this § 1983 claim for malicious prosecution on September 2, 2015. (Doc. 1). 14 II. LEGAL STANDARDS 15 A. 16 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 17 appropriate when: (1) the movant shows that there is no genuine dispute as to any 18 material fact; and (2) after viewing the evidence most favorably to the non-moving party, 19 the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. 20 Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 21 1288-89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect 22 the outcome of the suit under governing [substantive] law will properly preclude the 23 entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 24 A “genuine issue” of material fact arises only “if the evidence is such that a reasonable 25 jury could return a verdict for the nonmoving party.” Id. Summary Judgment 26 In considering a motion for summary judgment, the court must regard as true the 27 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 28 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party -3- 1 may not merely rest on its pleadings; it must produce some significant probative evidence 2 tending to contradict the moving party’s allegations, thereby creating a material question 3 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 4 evidence in order to defeat a properly supported motion for summary judgment); First 5 Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 6 “A summary judgment motion cannot be defeated by relying solely on conclusory 7 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 8 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 9 sufficient to establish the existence of an element essential to that party’s case, and on 10 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 11 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 12 B. 13 To prevail on his § 1983 claim for malicious prosecution, Plaintiff must show that 14 Defendant “prosecuted him with malice and without probable cause, and that they did so 15 for the purpose denying him equal protection or another specific constitutional right.” 16 Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009) (brackets and citation 17 omitted); Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th Cir. 2007) (“A police 18 officer who maliciously or recklessly makes false reports to the prosecutor may be held 19 liable for damages incurred as a proximate result of those reports”) (citations omitted). 20 “[P]robable cause is an absolute defense to malicious prosecution.” Id. The mere fact “a 21 prosecution was unsuccessful does not mean it was not supported by probable cause.” 22 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). “A criminal defendant 23 may maintain a malicious prosecution claim not only against prosecutors but also against 24 others—including police officers and investigators—who wrongfully caused his 25 prosecution.” Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011) (citation omitted). 26 III. Malicious Prosecution ANALYSIS 27 Defendant moves for summary judgment on the grounds that he had probable 28 cause to believe Plaintiff had committed disorderly conduct and unlawful flight. (MSJ at -4- 1 6-10.) Defendant also argues that he is protected from suit under the doctrines of 2 qualified immunity and prosecutorial independence. (MSJ at 10-13.) Plaintiff responds 3 that Defendant lacked essential elements of probable cause as to each charge, that any 4 established probable cause is contradicted by eyewitness testimony or by Defendant’s 5 contradicting statements, and that Defendant purposefully neglected to uncover 6 exculpatory statements and evidence. (Resp. at 6-12.) Plaintiff argues that these defects 7 also preclude the application of immunity or prosecutorial independence. (Resp. at 11- 8 14.) 9 A. Probable Cause 10 As stated, probable cause is an absolute defense to claims of malicious 11 prosecution. “Probable cause exists where ‘the facts and circumstances within [an 12 officer’s] knowledge and of which [he] had reasonably trustworthy information [are] 13 sufficient in themselves to warrant a man of reasonable caution in the belief that’ an 14 offense has been or is being committed.” Safford Unified Sch. Dist. No. 1 v. Redding, 557 15 U.S. 364, 370 (2009) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). 16 Probable cause means “fair probability, not certainty or even a preponderance of the 17 evidence.” United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006). “Subjective 18 intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren 19 v. United States, 517 U.S. 806, 813 (1996). The Court will first analyze whether probable 20 cause existed as to each charge. 21 1. Disorderly Conduct 22 A person commits disorderly conduct if, with intent to disturb the peace or quiet of 23 others, such person engages in fighting, violent, or seriously disruptive behavior, makes 24 unreasonable noise, or uses abusive or offensive language or gestures to any person in a 25 manner likely to provoke an immediate physical response. A.R.S. § 13–2904(A)(1)-(3). 26 Plaintiff argues that Defendant’s knowledge that Plaintiff had been “tapping” or 27 “banging” on a car window is insufficient to establish probable cause for disorderly 28 conduct. (Resp. at 6.) But Defendant has presented undisputed evidence that Mrs. Adams -5- 1 called 911 and stated that she had an Order of Protection against Plaintiff, was blocked in 2 and scared, asked Plaintiff to leave, had been accosted by Plaintiff, and that he was 3 making contact with her car window with some degree of force. Thus, Defendant had 4 information that Plaintiff was refusing to leave a location despite being asked and 5 understanding that Mrs. Adams had an Order of Protection against him, which she 6 obtained due to fear for her safety. Moreover, Defendant knew that Mrs. Adams was 7 crying and scared, had been called an idiot, and had refused to roll down the window of 8 her vehicle while Plaintiff was knocking on it. “With such information it was reasonable 9 for the officer to believe that [Plaintiff] had committed an offense.” Slade v. City of 10 Phoenix, 541 P.2d 550, 553 (Ariz. 1975). Defendant, therefore, had probable cause to 11 recommend that Plaintiff be prosecuted for disorderly conduct. See id.; Lantay v. 12 McLean, 406 P.2d 224, 226 (Ariz. Ct. App. 1965) (officers had probable cause to charge 13 the plaintiff with disturbing the peace based on his rude conduct and abusive language). 14 While Plaintiff has denied making unreasonable noise or using profanity, and 15 testimony differs as to the degree of force use to knock on Mrs. Adams’s window, this is 16 not sufficient to negate probable cause. “Police depend upon the information furnished by 17 citizens, and, unless the contrary appears, they should be able to depend upon the 18 presumption that men speak the truth.” Slade, 541 P.2d at 553; see also A.R.S. § 13– 19 3602(R)(4) (“A peace officer may also rely on the statement of any person who is 20 protected by the order that the order remains in effect.”). Defendant only had information 21 that Plaintiff had refused to leave despite Mrs. Adams’s requests and Order of Protection. 22 Even if this information was later refuted, recanted, or characterized differently, the 23 evidence shows that Defendant had ample probable cause to recommend a disorderly 24 conduct charge. Further, while Plaintiff asserts that the police report was not factually 25 correct, a misleading report “does not change the fact that the information upon which the 26 officer acted furnished probable cause.” Slade, 541 P.2d at 553. “The acts of the officer 27 concerning the report may constitute another tort, but they do not constitute malicious 28 prosecution.” Id. -6- 1 Plaintiff also seems to argue that Defendant was required or should have 2 conducted additional interviews, including of those who already gave written statements, 3 because he had “the right to continue his investigation.” (Resp. at 9.) Though a curious 4 choice of words, the Court agrees that Defendant had the right to continue his 5 investigation. But Plaintiff provides no support for the proposition that Defendant had a 6 duty to re-interview witnesses or search for exculpatory recantations.1 While an officer 7 has a duty not to ignore exculpatory evidence that “negates a finding of probable cause,” 8 he is under no affirmative duty to continually attempt to negate probable cause once it is 9 acquired. Broam v. Brogan, 320 F.3d 1023, 1032 (9th Cir. 2003) (once probable cause is 10 established, “an officer is under no duty to investigate further or to look for additional 11 evidence which may exculpate the accused”). Moreover, the majority of subsequent 12 testimony from eyewitnesses was largely unchanged and would not have erased the 13 existing probable cause. To hold that Defendant was required to interview the very same 14 witnesses from whom he obtained written statements is at odds with all probable cause 15 precedent and does nothing to show that Defendant was aware of exculpatory or 16 contradictory evidence which he failed to disclose or consciously obscured. 17 Finally, Plaintiff argues that there was no refusal to obey a lawful order “to 18 disperse issued to maintain public safety” (Resp. at 7.) Though technically accurate, a 19 clear analogy can be drawn in that an Order of Protection had been issued against 20 Plaintiff, and he was in direct contravention of that Order. While not in regards to a 21 hazard, the Order of Protection is a lawful order that is designed to maintain safety. 22 Defendant had reason to believe that Plaintiff’s persistent conduct was a knowing 23 violation of that Order. Thus, the Court finds that no genuine dispute of fact exists that 24 25 26 27 28 1 Similarly, Plaintiff notes that “other circuits have also suggested there may be a duty to disclose exculpatory evidence.” (Resp. at 8 n.8 (collecting cases).) Indeed, there is not a suggestion of such a duty to disclose, but an absolute and continuing obligation to divulge exculpatory evidence. However, placement of this argument, and its relevance, is mystifying. There is no contention that Defendant failed to disclose any exculpatory evidence, only that he did not adequately endeavor to discover it. Whatever argument Plaintiff attempts to make with such citations has no relevance to any of the facts or legal arguments at hand. -7- 1 Defendant had probable cause to submit for disorderly conduct charges, and Plaintiff’s 2 arguments to the contrary are without merit. 3 2. Unlawful Flight 4 Defendant argues that there was probable cause to submit for the charge of 5 unlawful flight because he had requested identification from Plaintiff, Plaintiff responded 6 by vacating the premises at an elevated rate of speed, and Defendant pursued Plaintiff 7 with activated lights and sirens. (MSJ at 7-8.) In response, Plaintiff claims that he did not 8 knowingly or willfully flee, was unaware of Defendant’s pursuit, and was free to leave 9 because Defendant did not tell him he was under investigation or being detained. (Resp. 10 at 9-10.) 11 A person commits unlawful flight if a “driver of a motor vehicle . . . willfully flees 12 or attempts to elude a pursuing official law enforcement vehicle” that has activated 13 visible lights and audible sirens. A.R.S. § 28.622.01. At the outset, Defendant has offered 14 uncontroverted testimony that he pursued Plaintiff in his vehicle, lights flashing and 15 sirens sounding. Plaintiff has failed to assert a single fact that controverts Defendant’s 16 claim. While Plaintiff notes that multiple eyewitnesses did not see or hear the lights and 17 sirens, or that the two cars never occupied the same street at the same time, he offers no 18 witness testimony or evidence that Defendant did not act as he claims—only that Plaintiff 19 and others might not have seen it. Thus, it is uncontroverted that Defendant pursued 20 Plaintiff as required by A.R.S. § 28.622.01. However, questions remain as to whether this 21 was a “willful” attempt to flee under the statute. 22 While Plaintiff claims that he did not, and at times could not, have seen or heard 23 Defendant’s lights or sirens, this alone does not eviscerate probable cause. Given 24 Defendant’s uncontroverted description of events, it was reasonable for him to presume 25 that Plaintiff was cognizant of his pursuit, particularly given the circumstances 26 surrounding the event. The mail carrier that soon after stated that a vehicle matching 27 Plaintiff’s had recklessly passed her at a high rate of speed bolstered Defendant’s 28 suspicion. Thus, when submitting his report and recommendation for charges, Defendant -8- 1 had probable cause to believe Plaintiff had willfully fled and eluded law enforcement 2 pursuit. 3 In regards to Plaintiff’s argument that he reasonably believed he was free to leave 4 (Resp. at 9-10), that fact is determined by whether “in view of all of the circumstances 5 surrounding the incident, a reasonable person would have believed he was not free to 6 leave.” U.S. v. Mendenhall, 446, U.S. 544, 554 (1980). The calculus here, however, is not 7 whether Plaintiff was indeed free to leave under the constitutional analysis, or even 8 whether a reasonable person in his circumstances would believe they had the right to 9 leave, but whether Defendant reasonably believed that Plaintiff knew he was not free to 10 leave or was consciously evading Defendant’s pursuit. The Court finds the facts 11 demonstrate that Defendant’s belief was reasonable. Given the tumultuous circumstances 12 surrounding their interaction, the Order of Protection against Plaintiff, and the fact that 13 Defendant explicitly asked Plaintiff to provide identification immediately prior to his 14 departure, it is at the very least plausible that a reasonable person would not have 15 believed he was free to leave. Thus, Defendant was warranted in his subsequent belief 16 that probable cause existed—even as to Plaintiff’s subjective state of mind—regarding 17 the unlawful flight charge. 18 Plaintiff also argues that Defendant should have interviewed Mrs. Adams and 19 Ms. Douglas after Plaintiff left about the alleged flight. This argument is illogical. 20 Defendant believed Plaintiff was not free to leave and pursued him accordingly. It is 21 puzzling what Plaintiff believes Defendant could have learned from questioning 22 witnesses about his own actions. As Defendant points out, he is “not required to interview 23 witnesses to confirm his own actions and observations,” as there “can be no more 24 trustworthy source of information.” (Reply at 3.) Moreover, Mrs. Adams’ later-made 25 statements were not that Defendant did not activate his lights and sirens, but simply that 26 he did so on one road, rather than another, and that she did not see the two cars on one 27 specific road at the same time. (Reply at 5-6 (citing Defendant’s Statement of Facts 28 ¶¶ 47, 68-69).) -9- 1 Even were the Court to find that a genuine issue of material fact remains as to 2 whether probable cause existed regarding the unlawful flight component of Plaintiff’s 3 charges—either due to Defendant’s pursuit or Plaintiff’s state of mind—summary 4 judgment in Defendant’s favor would nonetheless be appropriate. Plaintiff’s § 1983 5 allegation is styled as a singular count. Thus, even construing the nonmaterial factual 6 disputes regarding Plaintiff’s alleged unlawful flight as material, it is unequivocal that 7 Plaintiff’s disorderly conduct charge was supported by ample probable cause and could 8 have been brought regardless of Plaintiff’s unlawful flight charge. Accordingly, 9 Plaintiff’s entire § 1983 claim fails regardless of any alleged issues pertaining only to the 10 unlawful flight probable cause. 11 B. 12 Because the Court has found ample probable cause existed as to both of Plaintiff’s 13 initial charges, it is not required to reach Defendant’s argument that he is shielded by 14 qualified immunity. Nonetheless, the Court will briefly address the defense in pursuit of a 15 fulsome analysis. Qualified Immunity 16 Defendant is entitled to qualified immunity based on (1) whether the facts show a 17 violation of a constitutional right, and (2) if that right was clearly established at the time 18 of the misconduct. Pearson v. Callahan, 555 U.S. 223 (2009). Even if a law enforcement 19 officer violates an individual’s constitutional rights, the officer may be protected by the 20 doctrine of qualified immunity, which shields a public official from individual liability 21 for civil damages under § 1983 so long as his conduct does not “violate clearly 22 established statutory or constitutional rights of which a reasonable person would have 23 known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances 24 two important interests—the need to hold public officials accountable when they exercise 25 power irresponsibly and the need to shield officials from harassment, distraction, and 26 liability when they perform their duties reasonably. The protection of qualified immunity 27 applies regardless of whether the [police officer’s] error is a mistake of law, a mistake of 28 fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 223 - 10 - 1 (citation and quotation marks omitted). Qualified immunity “provides ample protection to 2 all but the plainly incompetent or those who knowingly violate the law.” Malley v. 3 Briggs, 475 U.S. 335, 341(1986). 4 Plaintiff argues that Defendant is not entitled to qualified immunity because he 5 may have intentionally placed false information in his report in order to file the charges 6 of disorderly conduct and unlawful flight. (Resp. at 12.) Again, Plaintiff bases his 7 argument on the fact that no witness reported seeing Defendant activate his sirens and 8 lights directly in pursuit of and in proximity to Plaintiff. Still, no witness has asserted that 9 Defendant did not do so, only that they did not see him do so. Mrs. Adams plainly stated 10 that Defendant activated both. Plaintiff argues that it is possible Defendant did not act as 11 he reported and in doing so falsified his report, precluding the application of qualified 12 immunity. 13 At this stage, possibility or plausibility is not the standard. Unlike the pleading 14 stage, Plaintiff must provide factual assertions supported by evidence sufficient to create 15 a genuine issue of fact that Defendant did not act as he claims and lied in his report. 16 Plaintiff has failed to do so. Further, even if Defendant was mistaken as to Plaintiff’s 17 intent, “he is entitled to qualified immunity because a reasonable officer could conclude 18 that an individual who drove away from the scene of an investigation was attempting to 19 flee.” (Reply at 4.) Accordingly, even if the Court found a genuine dispute of material 20 fact as to probable cause, Defendant would be entitled to summary judgment based on 21 qualified immunity. 22 C. 23 As with Defendant’s quality immunity defense, it is not necessary to address 24 Defendant’s prosecutorial independence defense, but the Court will briefly analyze the 25 argument to fully resolve the contentions before it. Prosecutorial Independence 26 To prevail on the § 1983 claim that his prosecution violated his civil rights, 27 Plaintiff “must show that the defendant[] prosecuted [him] with malice and without 28 probable cause, and that they did so for the purpose of denying [him] equal protection or - 11 - 1 another specific constitutional right.” Freeman, 68 F.3d at 1189 (citations omitted). Even 2 assuming that Plaintiff could meet the malice and lack of probable cause elements— 3 which the Court has already found otherwise—the presumption of prosecutorial 4 independence, which frequently bars a plaintiff’s § 1983 malicious prosecution claim 5 against an arresting officer, must still be rebutted. 6 Ordinarily, the decision to file a criminal complaint is presumed to result from an 7 independent determination of the prosecutor, and, thus, precludes liability for those who 8 participated in the investigation or filed a report that resulted in initiation of proceedings. 9 However, the presumption of prosecutorial independence does not bar a subsequent 10 § 1983 claim against state or local officials who improperly exerted pressure on him, 11 knowingly provided misinformation to the prosecutor, concealed exculpatory evidence, 12 or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in 13 causing the initiation of legal proceedings. Awabdy v. City of Adelanto, 368 F.3d 1062, 14 1067 (9th Cir. 2004). Malicious prosecution actions are not limited to suits against 15 prosecutors, but may be “brought against other persons who have wrongfully caused the 16 charges to be filed.” Id. at 1066 (citation omitted). “A prosecutor’s decision to charge . . . 17 will not shield a police officer who deliberately supplied misleading information that 18 influenced the decision . . . . They cannot hide behind officials whom they have 19 defrauded.” Pierce v. Gilchrist, 359 F.3d 1279, 1292 (10th Cir. 2004) (quoting Jones v. 20 City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)). 21 As Plaintiff acknowledges, the non-movant must point to evidence of fabrication, 22 other than inconsistency between the accounts of different parties, in order to defeat 23 summary judgment in malicious prosecution claims. (Resp. at 13 (citing Smiddy v. 24 Varney, 665 F.2d 261, 266-67 (9th Cir. 1981).) To do so, Plaintiff again argues that 25 witness reports contradict Defendant’s statements. (Resp. at 13-14.) These statements do 26 not directly contradict Defendant’s; they simply do not bolster them. Plaintiff presents no 27 evidence establishing a genuine issue of material fact as to whether Defendant exerted 28 pressure on prosecutors or his superiors to charge Plaintiff, or whether Defendant - 12 - 1 provided misinformation, concealed exculpatory evidence, or engaged in wrongful or bad 2 faith conduct that was instrumental in causing the initiation of legal proceedings. See 3 Harper v. City of Los Angeles, 533 F.3d 1010, 1028 (9th Cir. 2008) (holding that 4 evidence rebutting the presumption of prosecutorial independence “must be substantial”). 5 Again, Plaintiff only provides later statements that may differ slightly from Defendant’s 6 rendition of events—not actual contradictions. Not only are the supposed discrepancies 7 far less than the substantial threshold required to rebut prosecutorial independence, but 8 they are quite common in eyewitness testimony. Indeed, many of the witness statements 9 that supply the alleged discrepancies on which Plaintiff relies differ from separate 10 accounts from those very same witnesses. Therefore, summary judgment is proper 11 because there is no evidence upon which a reasonable jury could find the presumption of 12 prosecutorial independence rebutted. 13 IV. CONCLUSION 14 Plaintiff argues that there are factual disputes that preclude summary judgment on 15 the existence of probable cause. But there are either no such disputes or, to the extent that 16 there are, the evidence is insufficient to negate probable cause—even when construed in 17 Plaintiff’s favor. The Court concludes, as a matter of law, that sufficient probable cause 18 to believe that Plaintiff had committed disorderly conduct and unlawful flight existed 19 such that Defendant could submit his report to initiate criminal charges. Moreover, 20 Defendant is shielded from liability by qualified immunity and prosecutorial 21 independence. 22 IT IS THEREFORE ORDERED granting Defendant Kevin Gilliland’s Motion 23 for Summary Judgment (Doc. 67). 24 .... 25 .... 26 .... 27 .... 28 .... - 13 - 1 2 3 IT IS FURTHER ORDERED that the Clerk of Court shall enter final judgment accordingly and close this case. Dated this 28th day of July, 2017. 4 5 6 Honorable John J. Tuchi United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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