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WAGNER v. FLIPPO

November 8, 2005.

WALTER L. WAGNER, Plaintiff,
v.
DEAN FLIPPO; CAROL REED; MURAT OZGUR; and THE COUNTY OF MONTEREY, Defendants.



The opinion of the court was delivered by: JEFFREY WHITE, District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Now before the Court is the motion by defendants Dean Flippo, Carol Reed, Murat Ozgur,*fn1 and the County of Monterey (collectively "Defendants") to dismiss plaintiff Walter L. Wagner's complaint for failure to state a claim upon which relief can be granted. The Court finds this matter suitable for disposition without oral argument. Civil L.R. 7-1(b). Having carefully reviewed the parties' papers, considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby GRANTS Defendants' motion to dismiss.

FACTUAL BACKGROUND

  Plaintiff brings a claim under 42 U.S.C. § 1983 ("Section 1983") against Defendants for their alleged wrongful prosecution of him in Monterey Superior Court for criminal contempt of a court order. (Compl. at ¶ 14.) Defendants prosecuted Plaintiff pursuant to California Penal Code § 166(a)(4), which defines contempt of court as the willful disobedience of the written terms of a lawfully-issued court order and classifies the crime as a misdemeanor. (Compl. at ¶ 6.) The prosecution commenced on November 20, 2001. (Compl. at ¶ 6.) According to Defendants, Plaintiff disobeyed the terms of a 1977 permanent injunction when he made several attempts to contact Ms. Gail Morton in Monterey on November 9 and 10, 2001. (Br. at 1-2.) The permanent injunction prohibited Plaintiff from harassing Ms. Morton by telephone, in writing, or by walking, riding, or driving past her home. Morton v. Wagner, No. H024187, 2003 WL 21456517, at *2 (Cal.Ct.App. June 24, 2003).*fn2

  Plaintiff and Ms. Morton met as first-year students at McGeorge Law School. Id. at *1. Plaintiff pursued Ms. Morton in an erratic and persistent fashion. Id. He lurked in the hallway of her apartment building, jumped out of bushes at her, and delivered all manner of objects to her by placing them in and around her car. Id. He sought court orders to prohibit Ms. Morton from living with men over the age of 14 and to require her to read books on sexual reproduction. Id. He was found on campus wearing a wig and carrying a knife. Id. As a result of his threatening behavior, the law school provided Ms. Morton with a 24-hour security guard to protect her until she completed the bar exam in 1978. Id. During this period, Ms. Morton filed a lawsuit against Plaintiff for intentional infliction of emotional distress; she sought a temporary and permanent injunction to restrain Plaintiff from contacting her. Id. at *2. The lawsuit resulted in the 1977 injunction which Defendants used to prosecute Plaintiff. Id.

  Plaintiff made continued attempts to contact Ms. Morton both at her work and last-known home addresses even after the 1977 permanent injunction issued. Id. Plaintiff kept Ms. Morton's parents' home in Santa Clara County under surveillance; he sent letters to their home. Id. He attended Ms. Morton's courtroom appearances and inquired about her at the Santa Clara County Superior Court. Id. Once in 1999, Plaintiff followed Ms. Morton out of the Santa Clara County courthouse as she walked to her car. Id.

  The events that led Defendants to prosecute Plaintiff occurred on November 9 and 10, 2001. (Compl. at ¶ 2.) On the morning of November 9, 2001, Ms. Morton appeared in the Santa Clara County courthouse on client business. Morton, 2003 WL 21456517, at *2. She overheard a man asking one of the bailiffs if he knew of an attorney named Gail Morton; when she looked over, she recognized Plaintiff as the inquirer. Id. Plaintiff later drove down to Monterey, the city where Ms. Morton resides, and appeared at Ms. Morton's parents' home. Id. He identified himself as "Zahaenya Wagner" and asked to contact Ms. Morton. Id. That evening, Plaintiff telephoned Ms. Morton's father and left a telephone number where he could be reached. (Compl. at ¶ 2; Opp. Br. at 3.) The next day, before leaving Monterey, Plaintiff left his business card at a shop adjacent to Ms. Morton's workplace, and asked the shopkeeper to deliver the card to Ms. Morton in order to make sure she received it.*fn3 (Id.)

  Ms. Morton, frightened by Plaintiff's appearance in Monterey, contacted the Pacific Grove and Monterey Police Departments on November 10, 2001, and provided each with a copy of the 1977 injunction. Morton, 2003 WL 21456517, at *2. When she saw Plaintiff leaving the area later in the day, she notified the police of his presence. Id. The police arrested Plaintiff on his way to the San Francisco airport. (Opp. Br. at 4.) At the time of his arrest, Plaintiff was in possession of several knives and a list containing the names of all of Ms. Morton's coworkers. (Id.)

  After Plaintiff's arrest, Defendants commenced a criminal prosecution against him. (Compl. at ¶ 6.) Plaintiff, in his defense, argued that the 1977 permanent injunction had been voided by a mutual release entered into by Plaintiff and Ms. Morton in 1981. (Compl. at ¶ 11; Br. at 1.) The 1981 civil action arose out of an injurious newspaper article, and in the mutual release, Ms. Morton agreed to "dismiss forthwith, with prejudice, any action pending," and "to not make derogatory, untruthful, or unfriendly remarks" about Plaintiff. (Br. at 1.) Defendants' case against Plaintiff was dismissed with prejudice on July 14, 2004 by Judge Maldonado of the Monterey County Appellate Division of the Superior Court of California. (Compl. at ¶ 7.) Judge Maldonado found that the 1977 permanent injunction had been dissolved by the prior release agreement and that Plaintiff should instead have been charged under California stalker statutes. (Br. at 2.)

  After Defendants' case was dismissed on appeal, Plaintiff initiated this suit, claiming that "defendants' actions of wrongful prosecution were a violation of both State and Federal Statutes . . . and in particular, defendants actions [sic] were a violation of Section 1983." (Compl. at ¶ 14.) Plaintiff alleges that the wrongful prosecution consisted of: filing a criminal complaint "based upon [the] wholly innocent activity of Plaintiff" (Compl. at ¶¶ 6, 10); failure to research the law (Compl. at ¶ 11); and continuing to prosecute Plaintiff after it should have been apparent that the 1977 injunction was no longer valid. (Id.) In response, Defendants argue that they are absolutely immune from suit for the prosecutorial conduct Plaintiff alleges violated his constitutional rights, and seek to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

  ANALYSIS

  I. Legal Standard on a Motion to Dismiss.

  A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. A motion to dismiss should not be granted unless it appears beyond a doubt that a plaintiff can show no set of facts supporting his or her claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, dismissal is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The complaint is construed in the light most favorable to the non-moving party and all material allegations in the complaint are taken to be true. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). The court, however, is not required to accept legal conclusions cast in the form of factual allegations, if those conclusions cannot reasonably be ...


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