Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1062 (9th Cir. 1991)

William Lynn HEMENWAY, Plaintiff-Appellant,v.ONE UNKNOWN OFFICER OF the MINERAL COUNTY SHERIFF'S OFFICE,individually and officially, Defendant-Appellee.

No. 90-15064.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided Jan. 28, 1991.

Before PREGERSON, FERGUSON and TROTT, Circuit Judges.


MEMORANDUM** 

William Hemenway filed this 42 U.S.C. § 1983 action alleging false arrest and false imprisonment after he was arrested on suspicion of sexual assault. Although the victim immediately reported the incident to the police and gave a detailed description of her assailant and his vehicle, she decided not to press charges, so Hemenway was booked only for driving on a suspended license and having no proof of insurance. The district court found that the victim's detailed and accurate description provided probable cause for the arrest, and granted summary judgment to the Sheriff, because no constitutional violation occurs when an arrest is made based on probable cause. We affirm.

STANDARD OF REVIEW

We review an order for summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). When reviewing a grant of summary judgment, we must read the record in the light most favorable to the losing party. Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984). However, the nonmoving party may not simply rest upon his pleadings, but must provide the court with evidence of the existence of a disputed material issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). No such evidence was presented here.

PROBABLE CAUSE

To prove a violation of Sec. 1983, the plaintiff must show that the officers lacked probable cause to arrest him. Williams v. Kobel, 789 F.2d 463, 470 (7th Cir. 1986). The Supreme Court has defined probable cause as "facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.' " Gerstein v. Pugh, 420 U.S. at 111-12 (1974) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). The information available to the police at the time of arrest determines whether probable cause existed. Id.

Here, the undisputed facts in the police report, telephone and radio log, and original interview with the victim, supplemented by affidavits from the victim and officers, all concur. The victim reported the assault at approximately midnight, immediately after it occurred, and was visibly distraught. She described her assailant's car as a dark blue Chevrolet Camaro Z-28 with a Harley-Davidson license plate on the front. He was described as a six foot tall white male named "Bill," with long brown hair, a full beard, and several tattoos. The officers had no reason to doubt the accuracy of the description or the credibility of the victim's detailed account of the incident, and both Hemenway and his vehicle clearly fit her description. Absent any indication to the contrary, police officers are entitled to rely upon information supplied by the victim of an alleged sexual assault. Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987); Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985). The victim did not refuse to press charges until at least an hour after Hemenway was arrested, and never recanted her story, but merely explained that she was afraid to testify in court. At the time of the arrest, therefore, probable cause existed as a matter of law.

In addition, as the district court correctly noted, the arresting officer is entitled to qualified immunity on these facts under Anderson v. Creighton, 483 U.S. 635 (1987), even if the arrest did lack probable cause. An officer is immune from suit as long as he acted on a good-faith belief that the arrest was valid under clearly established law. Therefore, summary judgment was proper under either theory. Hemenway has failed to meet his Celotex burden of establishing any facts which indicate otherwise. The judgment is AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3