United States District Court, E.D. Washington
ORDER DENYING PLAINTIFF'S MOTION FOR
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
the Court, without oral argument, is Plaintiff Tyler
Lankford's Motion for Reconsideration, ECF No. 164.
Lankford filed this action against the above-captioned
defendants (collectively, “Pullman Defendants”)
alleging violation of several constitutional and statutory
rights. Pullman Defendants moved for summary judgment on
Lankford's claims, ECF No. 65, and the Court granted the
motion in part and denied it in part. As relevant to this
motion, the Court granted summary judgment to the Pullman
Defendants on Lankford's malicious prosecution claims.
Lankford now moves for reconsideration on the malicious
prosecution claim. ECF No. 102.
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.” 389 Orange St. Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
argues that (1) questions of fact remain regarding whether
probable cause existed to support the possession of a
controlled substance charge, and (2) the Court did not
properly address Lankford's claim for malicious
prosecution on the felony harassment charge.
respect to the possession of a controlled substance charge,
Lankford argues that questions of fact existed as to whether
probable cause existed to initiate or pursue the claim.
However, the Court has already determined that probable cause
existed for that claim, see ECF No. 163, and
Lankford has not produced any additional evidence to warrant
reconsideration. Even if Lankford could establish a lack of
probable cause, his claim still suffers from the same
deficiency identified below-namely, he can point to no
evidence in the record from which a reasonable juror could
infer that any of the named defendants acted with malice.
further argues that the Court erred in granting summary
judgment on his malicious prosecution claim for the charge of
felony harassment with a gun enhancement. When a plaintiff
asserts a claim for malicious prosecution, the Court must
analyze each charged claim independently. “[P]robable
cause as to one charge will not bar a malicious prosecution
claim based on a second, distinct charge as to which probable
cause was lacking.” See Holmes v. Vill. of
Hoffman Estate, 511, 511673, 682 (7th Cir. 2007). While
Lankford is correct that the Court's prior order did not
clearly distinguish between the drug and felony harassment
claims, the Court's decision remains unchanged that
summary judgment for the Pullman Defendants is appropriate on
Ninth Circuit, the general rule is that a claim of malicious
prosecution is not cognizable under 42 U.S. § 1983 if
process is available within the state judicial system to
provide a remedy. Usher v. City of L.A., 828 F.2d
556, 561 (9th Cir. 1987). However, “an exception exists
to the general rule when a malicious prosecution is conducted
with the intent to deprive a person of equal protection of
the laws or is otherwise intended to subject a person to a
denial of constitutional rights.” Id. at 562
(quoting Bretz v. Kelman, 773 F.2d 1026, 1031 (9th
Cir. 1985) (en banc).
maintain an action for malicious prosecution, a plaintiff
must show that (1) the prosecution was instituted or
continued by the defendant; (2) there was want of probable
cause for the institution or continuation of the prosecution;
(3) the proceedings were instituted or continued through
malice; (4) the proceedings terminated on the merits in favor
of the plaintiff or were abandoned; and (5) the plaintiff
suffered injury or damage as a result of the prosecution.
Hanson v. City of Snohomish, 852 P.2d 295, 298
(Wash. 1983); Peasley v. Puget Sound Tug & Barge
Co., 125 P.2d 681, 687-88 (Wash. 1942). Of these five
elements, malice and want of probable cause constitute the
“gist of the action.” Peasley, 125 P.2d
burden of proof on both elements rests with the plaintiff.
Id. Where, as here, the plaintiff successfully
establishes want of probable cause for a defendant's
institution of criminal proceedings against him, that fact
alone is insufficient to establish a prima facie case for
malicious prosecution. The plaintiff must go further on the
part of the defendant, “for want of probable cause
without malice is of no avail.” Id. at 689.
Lankford has established that officers lacked probable cause
to suspect him of the crime of felony harassment against
Mikaela Marlow. However, Lankford has produced no evidence
from which a reasonable juror could infer malice. In his
motion for reconsideration, Lankford argues that malice is
not an element of a federal malicious prosecution claim, but
cites no authority for this position. The Ninth Circuit has
repeatedly recognized that a malicious prosecution claim
requires a showing of malice. See, e.g., Usher, 828
F.2d at 561 (recognizing § 1983 claim requires a showing
of “malicious motivation”); Freeman v. City
of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (noting
that, to prevail on a § 1983 malicious prosecution
claim, the plaintiff must show “that the defendants
prosecuted her with malice and without probable
IT IS HEREBY ORDERED:
Plaintiffs Motion for Reconsideration, ECF No.
164, is DENIED.
IS SO ORDERED. The Clerk's Office is directed to
enter this Order ...