                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 01 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL RIESE, an individual,                    No.   14-16801

              Plaintiff-Appellant,               D.C. No. 3:12-cv-03723-WHO

 v.
                                                 MEMORANDUM*
COUNTY OF DEL NORTE; CRESCENT
CITY; CRESCENT CITY POLICE
DEPARTMENT; COUNTY OF DEL
NORTE SHERIFF’S DEPARTMENT;
JON ALEXANDER; KEITH DOYLE;
DOUG PLACK; RICHARD GRIFFIN,

              Defendants-Appellees.


                  Appeal from the United States District Court
                      for the Northern District of California
               William Horsley Orrick III, District Judge, Presiding

                    Argued and Submitted November 14, 2016
                            San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Appellant Michael Riese filed a 42 U.S.C. § 1983 malicious prosecution

action against former District Attorney for Del Norte County, California, Jon


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Alexander, the county itself, and others. Riese alleged that Alexander improperly

pressured prosecutors in the California Attorney General’s office to file charges

against Riese for driving under the influence of alcohol or drugs. See Cal. Veh.

Code § 23152. The district court granted summary judgment to the defendants on

all claims. Riese timely appealed, and we affirm.

      To succeed on a claim of malicious prosecution under 42 U.S.C. § 1983,

Riese must show (1) a criminal prosecution by or at the direction of the defendant;

(2) with malice; (3) without probable cause; and (4) for the purpose of denying him

equal protection or another specific constitutional right. See Awabdy v. City of

Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). The presence of probable cause is

a defense to malicious prosecution. Freeman v. City of Santa Ana, 68 F.3d 1180,

1189 (9th Cir. 1995), as amended on denial of reh’g and reh’g en banc (Dec. 29,

1995).

      Crescent City Police Detective Keith Doyle prepared an investigative report

reviewed by the prosecutors in this case. The report contained substantial evidence

that Riese had driven while under the influence of a drug. There is no genuine

dispute as to the controlling material fact that Riese’s prosecution was supported

by probable cause to think that he was guilty of the crime charged. Hence,




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summary judgment was correct under the standard set by Rule 56 of the Federal

Rules of Civil Procedure. We review pertinent parts of the evidence below.

      First, Doyle’s investigative report included evidence that on August 22,

2011, Riese was under the influence of a drug. Around 8:00 PM that day, Riese

was found disoriented in a Safeway. Testimony from the responding officers and

store employees indicated that Riese said he was taking the painkiller Vicodin;

appeared confused and disoriented; had difficulty standing in place; was barely

able to walk; was slurring his speech; opened store products while sitting on the

floor; was unable to properly slide his card through the payment terminal; tried to

slide his card through the change return; did not know where his keys and cell

phone were; was unable to operate a borrowed phone; was at least three-and-a-half

hours off on his estimate of the time; and seemed, per Detective Doyle’s

observation from the store tape, “extremely under the influence.” Also, a store

employee told Doyle that Riese was not competent to drive. Further, according to

Doyle’s report, when Riese picked up his children from daycare earlier that day, he

had acted unusually and had been abnormally abrupt in his conversations. Riese’s

ex-wife Stephanie Riese, who spoke to him on the phone that day, described his

words as “gibberish.” She later saw Riese at his office, and observed that Riese

exhibited odd behavior, was sweating, and that his eyes were glazed over.


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      Second, the report indicates that Riese drove during this period. For one

thing, he drove to his children’s daycare, where a person present at the daycare said

he arrived “crazy” and “very fast.” A daycare employee said that when he left, he

ran over several solar lights. Riese’s truck was later seen at his office, where it was

parked crossways in the parking lot with its door open and hood up. No more than

one hour later, Riese’s truck was seen fifty feet away from Safeway, parked across

four different parking spaces. Also, according to Stephanie Riese, one of Riese’s

children told her that Riese had driven erratically and almost gotten into an

accident.

      Even if some of the evidence is disputed or conflicting, and indeed some of

this was hearsay, that does not preclude a conclusion that “probable cause,” as

opposed to definite guilt, existed as a matter of law. See Lassiter v. City of

Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009). Probable cause requires only a

“fair probability” that the defendant committed a crime. Grant v. City of Long

Beach, 315 F.3d 1081, 1085 (9th Cir. 2002), opinion amended on denial of reh’g,

334 F.3d 795 (9th Cir. 2003) (internal quotation marks omitted). The record

before the court on summary judgment established that there was a fair probability

that Riese drove while under the influence, and no fact issue on particular parts of




                                           4
the evidence raised a genuine dispute on the conclusion of probable cause as a

whole.

      AFFIRMED.




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