Linda K. Wood v. Steven C. Ostrander Neil Maloney

851 F.2d 1212 Linda K. WOOD, Plaintiff-Appellant, v. Steven C. OSTRANDER; Neil Maloney, Defendants-Appellees. No. 87-3924. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 3, 1988. Decided July 13, 1988. Paul Lindenmuth, Neil J. Hoff, Tacoma, Wash., for plaintiff-appellant. Betty Edwards, Asst. Atty. Gen. (on brief), Rene D. Tomisser, Asst. Atty. Gen. (argued), Olympia, Wash., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before FLETCHER and THOMPSON, * Circuit Judges, and CARROLL, ** District Judge. FLETCHER, Circuit Judge: 1 Linda Wood brought this action against Washington State Trooper Steven Ostrander and others for damages under 42 U.S.C. Sec. 1983 . Wood appeals the district court's dismissal on summary judgment. We reverse. FACTS 2 At 2:30 a.m., in the morning of September 23, 1984, Trooper Ostrander pulled a car to the side of the road for driving with its high beams on. Ostrander determined that the driver, Robert Bell, was intoxicated and placed him under arrest. Ostrander called for a tow truck to have the car impounded, and returned to the car and removed the keys. Wood, who was…

Linda Wood brought this action against Washington State Trooper Steven Ostran-der and others for damages under 42 U.S. C. § 1983. Wood appeals the district court’s dismissal on summary judgment. We reverse.

FACTS

At 2:30 a.m., in the morning of September 23, 1984, Trooper Ostrander pulled a car to the side of the road for driving with its high beams on. Ostrander determined that the driver, Robert Bell, was intoxicated and placed him under arrest. Ostrander called for a tow truck to have the car impounded, and returned to the car and removed the keys. Wood, who was sitting in the car, asked Ostrander how she would get home. Ostrander replied that he was sorry, but that Wood would have to get out of the car. These facts are not disputed. Wood claims that Ostrander simply returned to his patrol car and drove away. Ostrander claims that he offered to call a friend or family member who could give Ms. Wood a ride home, but that she declined the offer. Although Wood claims that she did not see any open business at the time Ostrander drove away, Ostrander claims that a Shell station and a Seven-Eleven store were clearly visible and open for business. Ostrander further claims that Wood…

dissenting:

I would affirm the district court’s order granting summary judgment in defendants’ favor dismissing the amended complaint.

The district judge thoughtfully considered in his eight page order granting defendants’ motion for summary judgment issues respecting whether the undisputed facts demonstrated “a violation of a constitutional right,” and if so, whether the claim “should be dismissed on the basis that Os-trander is entitled to a good faith immunity.” (ER 54, p. 3.)

In going through its analyses, the trial court found that the following facts, amongst others, were undisputed:

Appellant has not challenged this finding as an issue on appeal. Ms. Wood’s affidavit that she did not see these businesses does not create a genuine issue of fact as to their presence considering there were appropriate affidavits that businesses were present and open at the time in question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). Appellant's efforts to obliquely create a factual issue through argument is inappropriate and violative of the rules of this Court. When pressed on this proposition at oral argument, appellant’s counsel took the…