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 Plaintiff filed two memoranda in opposition to defendant’s motion to dismiss. Dkt. # 19 and 24. 

Because defendant raised new issues in reply, both of plaintiff’s responses have been considered by the

Court.

ORDER GRANTING DEFENDANT’S

CROSS-MOTION FOR SUMMARY JUDGMENT

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

ALBERT M. MARK, )

) No. C06-0880RSL

Plaintiff, ) 

v. ) ORDER GRANTING DEFENDANT’S

) CROSS-MOTION FOR SUMMARY

SEATTLE DEPARTMENT OF ) JUDGMENT

TRANSPORTATION, STREET USE )

DIVISION, )

)

Defendant. ) 

_______________________________________)

This matter comes before the Court on plaintiff’s “Motion for Summary

Judgment” (Dkt. # 9), defendant’s “Cross-Motion for Summary Judgment” (Dkt. # 13), and

“Defendant’s Motion for Dismissal Pursuant to FRCP 12(b)(6)” (Dkt. # 12).1

 Plaintiff has

asserted a cause of action under 42 U.S.C. § 1983, alleging that defendant violated his

Fourteenth Amendment rights by maliciously prosecuting him for displaying merchandise on the

sidewalk in front of his store. In particular, plaintiff asserts that defendant, through Officer

Hope Bauer, initiated a criminal complaint against him without probable cause to believe that a

violation of SMC 15.04.010 had occurred and maliciously continued the prosecution through

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ORDER GRANTING DEFENDANT’S

CROSS-MOTION FOR SUMMARY JUDGMENT -2-

perjured testimony.

Summary judgment is appropriate when, viewing the facts in the light most

favorable to the nonmoving party, there is no genuine issue of material fact which would

preclude summary judgment as a matter of law. Once the moving party has satisfied his burden,

he is entitled to summary judgment if the non-moving party fails to designate, by affidavits,

depositions, answers to interrogatories, or admissions on file, “specific facts showing that there

is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere

existence of a scintilla of evidence in support of the non-moving party’s position is not

sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual

disputes whose resolution would not affect the outcome of the suit are irrelevant to the

consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). In other words, “summary judgment should be granted where the nonmoving

party fails to offer evidence from which a reasonable jury could return a verdict in its favor.” 

Triton Energy, 68 F.3d at 1221.

Having reviewed the memoranda, declarations, and exhibits submitted by the

parties, the Court finds as follows:

(1) Statute of Limitations

Defendant argues that plaintiff’s claims are barred by the statute of limitations. 

“In determining the proper statute of limitations for actions brought under 42 U.S.C. § 1983, we

look to the statute of limitations for personal injury actions in the forum state.” Maldonado v.

Harris, 370 F.3d 945, 954 (9th Cir. 2004). The limitations period for personal injury claims in

Washington is three years. RCW 4.16.080(2); see also Gausvik v. Perez, 392 F.3d 1006, 1009

(9th Cir. 2004). 

Although state law provides the period of limitations, federal law determines when

the cause of action accrues. Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981). Under federal

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 Plaintiff has disavowed any attempt to bring a separate constitutional claim based on Officer

Bauer’s alleged perjury (Dkt. # 24 at 4) and acknowledges that any claim asserting racial discrimination

would be barred by the doctrine of res judicata (Dkt. # 24 at 2). To the extent that plaintiff’s complaint

includes due process and/or equal protection claims other than the malicious prosecution claim, such

claims would have accrued no later than December 3, 2002, and are barred by the three-year statute of

limitations. 

ORDER GRANTING DEFENDANT’S

CROSS-MOTION FOR SUMMARY JUDGMENT -3-

law, a plaintiff’s cause of action generally accrues when he or she knows or has reason to know

of the injury which is the basis for the claim. Acknowledging that a claim for malicious

prosecution cannot be brought until the underlying charge has been finally resolved in favor of

plaintiff (see Cline, 661 F.2d at 110-11), defendant argues that plaintiff’s claim accrued on

December 3, 2002, when the Superior Court affirmed the municipal court’s judgment against

plaintiff. Plaintiff asserts, however, that the criminal prosecution was not finally resolved until

the Washington State Supreme Court denied his petition to modify the Commissioner’s ruling on

June 2, 2004. Dkt. 23 at 11. Although the relationship between the criminal complaint initiated

by defendant on April 19, 2001, and the Supreme Court’s ruling on plaintiff’s personal restraint

petition in Cause No. 75124-2 is unclear, plaintiff has alleged that the two arose out of the same

events. Based on the current record, the Court declines to find that plaintiff’s malicious

prosecution claim is time-barred as a matter of law. If, as plaintiff asserts, the June 2, 2004,

decision finally resolved the criminal complaint issued on April 19, 2001, the statute of

limitations, including the 60-day claim filing period, will not expire until August 3, 2007.2

(2) Malicious Prosecution

Plaintiff’s malicious prosecution claim under § 1983 fails as a matter of law. In

order to prevail on such a claim, plaintiff must establish that: (1) the prosecution was instituted

or continued by defendant; (2) without probable cause; (3) and through malice; (4) the

proceedings were terminated in favor of plaintiff; and (5) plaintiff suffered injury as a result. 

Hanson v. City of Snohomish, 121 Wn.2d 552, 558 (1993). Although plaintiff disagrees with

defendant’s interpretation of SMC 15.04.010 and SMC 15.02.048, that interpretation has been

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ORDER GRANTING DEFENDANT’S

CROSS-MOTION FOR SUMMARY JUDGMENT -4-

upheld by the courts of Washington. The municipal court found that plaintiff’s daily use of the

sidewalk in front of his store to display merchandise did not fall within the exception to the

permit requirement provided in SMC 15.02.048(A). The Superior Court and, possibly, the state

Supreme Court, upheld the municipal court’s decision. Thus, plaintiff cannot establish that the

criminal proceedings initiated and continued by defendant were terminated in his favor. In the

absence of any evidence that could support this element of plaintiff’s malicious prosecution

claim, defendant is entitled to summary judgment

For all of the foregoing reasons, plaintiff’s motion for summary judgment (Dkt. 

# 9) is DENIED, defendant’s cross-motion for summary judgment (Dkt. # 13) is GRANTED,

and defendant’s motion to dismiss (Dkt. # 12) is DENIED. The Clerk of Court is directed to

enter judgment in favor of defendant and against plaintiff.

DATED this 3rd day of August, 2006.

A

Robert S. Lasnik

United States District Judge

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