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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PETE HINSKEN et al.,

Plaintiff,

v.

ALYSSA ZACH et al.,

Defendants,

Case No. C06-5107RBL

REPORT AND

 RECOMMENDATION TO

 GRANT DEFENDANT ZACH’S

 MOTION FOR SUMMARY 

JUDGMENT 

 NOTED FOR:

January 19, 2007

This 42 U.S.C. § 1983 Civil Rights has been referred to the undersigned Magistrate Judge

pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1,

MJR 3, and MJR 4. Before the court is Alyssa Zach’s, motion for summary judgment (Dkt. # 44). 

Ms. Zach is one of the six named defendants in this action.

This action challenges the propriety of a search warrant, the filing of criminal charges, and the

return of personal property after a motion to suppress evidence was granted. One of the defendants,

Alyssa Zach, a deputy prosecutor with Cowlitz County, has moved for summary judgment and raises

the affirmative defense of prosecutorial immunity (Dkt. # 44).

Plaintiff has responded to the motion (Dkt. # 48). The response does not place any evidence

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REPORT AND RECOMMENDATION

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before the court showing that defendant Zach played any part in obtaining the search warrant that was

later found to be inadequate. Nor does plaintiff place before the court any evidence showing

defendant Zach had any knowledge surrounding the circumstances under which the search warrant

was obtained (Dkt. # 48). Plaintiff’s also fails to place any evidence before the court showing that

Defendant Zach ever had possession of any of their alleged personal property (Dkt. # 48).

FACTS

In July of 2004 a person named Susan Flannigan was arrested in Cowlitz County when she

tried to cash a counterfeit check (Dkt. # 1 page 2). Pete Hinsken was waiting in a van for Ms.

Flannigan to come out of the bank. He was placed under arrest after police contacted him. The arrest

was for outstanding warrants (Dkt. # 1 page 2). 

At the county jail Ms. Flannigan made statements incriminating Mr. Hinsken and linking the

check to a computer in his home. Detective Stafford obtained a warrant to search plaintiff’s home for

the computer and other tangibles. Allegedly Detective Stafford failed to disclose information

regarding Ms. Flannigan when he obtained the warrant (Dkt. # 1, page 2).

After executing the search warrant Pete Hinsken’s wife, Ginger, was also arrested (Dkt. # 1,

page 2). The Hinskens were charged with a seven count indictment including charges for possession

of stolen property, identity theft, and financial fraud (Dkt. # 1, page 2). 

Defendant Zach has placed information before the court showing she played no part in the

issuance of the search warrant in this case (Dkt. # 45, page 2). After review of the investigation file,

which included photographs of the evidence obtained when the search warrant was executed,

Defendant Zach caused an information to be filed against each of the Hinskens (Dkt. # 45, page 2). 

A suppression hearing was held with regards to the search warrant and the evidence obtained

by the warrant was suppressed. Defendant Zach represented the State at that hearing. When the

motion to suppress was granted, defendant Zach moved to dismiss the charges. Her motion was

granted (Dkt. # 45, page 3 and 4).

DISCUSSION

A. The standard of review.

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Pursuant to Fed. R. Civ. P. 56 (c), the court may grant summary judgment “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show

that there is no genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56 (c). The moving party is entitled to judgment as a matter of law

when the nonmoving party fails to make a sufficient showing on an essential element of a claim on

which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1985). 

There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a

rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative

evidence, not simply “some metaphysical doubt.”). See also Fed. R. Civ. P. 56 (e). Conversely, a

genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed

factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T. W. Elec. Service Inc. v. Pacific Electrical

Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must

consider the substantive evidentiary burden that the nonmoving party must meet at trial, e.g. the

preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Service

Inc., 809 F.2d at 630. The court must resolve any factual dispute or controversy in favor of the

nonmoving party only when the facts specifically attested by the party contradicts facts specifically

attested by the moving party. Id.

The nonmoving party may not merely state that it will discredit the moving party’s evidence

at trial, in hopes that evidence can be developed at trial to support the claim. T.W. Elec. Service Inc.,

809 F.2d at 630.(relying on Anderson, supra). Conclusory, nonspecific statements in affidavits are

not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation,

497 U.S. 871, 888-89 (1990).

B. Prosecutorial immunity.

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Here, defendant Zach has raised the affirmative defense of prosecutorial immunity (Dkt. #

44). A prosecuting attorney who initiates and prosecutes a criminal action is immune from a civil

suit for money damages under 42 U.S.C. S 1983. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). 

Absolute immunity applies only when the challenged activity is intimately associated with the

judicial phase of the criminal process. Id. at 430. Prosecutors are absolutely immune for

quasi-judicial activities taken within the scope of their authority. Ashelman v. Pope, 793 F.2d

1072, 1078 (9th Cir.1986). A prosecutor’s activities in connection with the preparation and filing

of charges are protected by absolute immunity. Kalina v. Fletcher, 118 S.Ct. 502, 509 (1997). 

Neither a conspiracy nor a personal interest will pierce a prosecutor's absolute immunity. 

Ashelman, 793 F.2d at 1072.

Here, the first evidence of defendant Zach’s participation in the case is when she reviewed

the file in August of 2004 after the warrant had been executed. There is nothing to show her

actions in filing a charge, defending the state’s position in the suppression hearing, and moving to

dismiss the charges after loss of the suppression hearing were anything but the activities associated

with the judicial phase of a prosecution. Defendant Zach is entitled to summary judgment and is

immune from suit. The court recommends this defendant be GRANTED SUMMARY

JUDGMENT AND DISMISSED FROM THIS ACTION. A proposed order accompanies this

Report and Recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure,

the parties shall have ten (10) days from service of this Report to file written objections. See also

Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes

of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on January 19, 2007 as noted in

the case caption.

DATED this 18, day of December, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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