632 F.2d 848 (10th Cir. 1980), 79-1347, Prochaska v. Marcoux

Docket Nº:79-1347, 79-1348.
Citation:632 F.2d 848
Party Name:Frank J. PROCHASKA, Plaintiff-Appellant Cross-Appellee, v. Francis H. MARCOUX, Defendant-Appellee Cross-Appellant.
Case Date:September 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 848

632 F.2d 848 (10th Cir. 1980)

Frank J. PROCHASKA, Plaintiff-Appellant Cross-Appellee,


Francis H. MARCOUX, Defendant-Appellee Cross-Appellant.

Nos. 79-1347, 79-1348.

United States Court of Appeals, Tenth Circuit

September 9, 1980

Rehearing Denied Nov. 10, 1980.

Page 849

Joseph P. Jenkins, Estes Park, Colo., for plaintiff-appellant. (Excused from oral argument).

David R. Brougham of Yegge, Hall & Evans, Denver, Colo., for defendant-appellee.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Frank J. Prochaska (Prochaska) appeals an order and judgment granting Francis Marcoux' (Marcoux) motion for summary judgment. Prochaska initiated the action on July 3, 1978 seeking compensatory and exemplary damages for Marcoux' alleged violation of his civil rights under 42 U.S.C.A. § 1983. A brief summary of the facts will facilitate our appellate disposition.

Marcoux is a wildlife conservation officer with the Colorado Division of Wildlife assigned to the Estes Park area of Colorado. Marcoux' duties as a wildlife officer include law enforcement, game management, fish management, and other duties related to management. As a wildlife conservation officer Marcoux is empowered, and obligated to request the production of hunting and fishing licenses (C.R.S. 1973, as amended, § 33-6-110). Marcoux is further empowered and obligated, as a wildlife conservation officer, to stop and board any boats and vessels (C.R.S. 1973, as amended § 33-31-111) operating within the waters of Colorado, unless otherwise exempt, to ascertain if the boat or vessel is properly registered and properly equipped with safety equipment including sounding devices and fire extinguishers, in accordance with the laws of Colorado.

On June 28, 1976, Marcoux, while on routine patrol, observed Prochaska operating his boat on Lake Estes without a current 1976 registration sticker. Since Marcoux had been making his patrol in his four wheel drive pickup, and a patrol boat was not available, he borrowed a boat from a nearby marina operator to go on the lake to check Prochaska's registration, his fishing license, and safety gear.

Upon reaching Prochaska's boat, Marcoux checked his fishing license and safety equipment. In checking Prochaska's fishing license and his boat for safety equipment, Marcoux remained in his own boat, did not enter Prochaska's boat or search it, and only visually examined it. After determining that Prochaska had a valid fishing license but that he was operating his boat without a sounding device and fire extinguisher, in violation of the laws of Colorado, Marcoux told Prochaska that he would have to issue a citation for not having the proper safety equipment in the boat and that Prochaska would have to accompany him back to the boat docks.

After returning to the dock, Marcoux cited Prochaska for "Operating a vessel without Proper Safety Equipment; To Wit, No Fire Extinguisher, No Sounding Device". Prochaska originally refused to sign the citation; however, he signed it after he was placed under arrest.

Page 850

After Prochaska signed the citation, Marcoux inquired about the boat registration. Prochaska responded that he did have a temporary registration for the boat, and that although he did not have it with him, he would bring it with him to court when he was to appear for the safety violation charges set forth in the citation.

Prior to Prochaska's scheduled court appearance, Marcoux telephoned the boat division of the Division of Parks and Outdoor Recreation to determine if Prochaska's boat was properly registered. Upon being informed that the boat was not registered, Marcoux prepared a second citation charging Prochaska with operating a vessel without a proper registration.

On July 2, 1976, the date of Prochaska's scheduled court appearance, Marcoux approached Prochaska in the courthouse hallway and handed him the second citation he had prepared for operating a vessel without a proper registration. When Prochaska immediately produced a current, valid temporary registration, Marcoux went directly to the Assistant District Attorney who thereafter dismissed the charge in open court. Subsequent thereto, Prochaska proceeded to trial. He was convicted for operating a vessel in Colorado without proper and adequate safety equipment. His conviction was affirmed on appeal.

On July 3, 1978 Prochaska filed a civil rights action against Marcoux, alleging, inter alia : Marcoux's actions in citing him for operating a vessel without proper safety equipment were undertaken maliciously and without probable cause; Marcoux' actions were accompanied by an abusive and arrogant manner; Marcoux' actions deprived him of his right to be secure against unreasonable searches and seizures, the right not to be deprived of life, liberty, or property without due process of law, and the right of an individual to be free from unreasonable interference by a police officer. Prochaska sought compensatory damages of $50,000 and punitive damages of $50,000.00.

In answer, Marcoux alleged that Prochaska had failed to state a claim cognizable under the civil rights act and that his actions were predicated on probable cause and undertaken in good faith.

Subsequent to depositions being taken by both parties, Marcoux filed a motion for summary judgment and memorandum in support thereof on January 2, 1979. On February 21, 1979, more than six weeks after Marcoux had filed his motion for summary judgment and supporting memorandum, and at a time when Prochaska had failed to either file a brief or affidavit in opposition to same, a hearing was held before the Court on Marcoux' motion for summary judgment. At the conclusion of the hearing, summary judgment was entered in favor of Marcoux, the complaint was dismissed, and costs of the action were assessed against Prochaska. Marcoux' subsequent motion for attorney fees was, however, denied.

On appeal Prochaska contends: (1) the Court erred in granting Marcoux' motion for summary judgment; (2) the stop and search of his motor boat was violative of the Fourth and Fourteenth Amendments; (3) there was not probable cause for charging him with operating a vessel without a proper and valid registration; and (4) his constitutional rights were violated under the proscriptions of the Civil Rights Act.

Marcoux cross-appeals the denial of his request for attorney fees.


Prochaska contends the Court erred in granting Marcoux' motion for summary judgment. Prochaska argues summary judgment was improper herein since "there are several questions of material fact that cannot be resolved on a motion for summary judgment, such as the veracity of Marcoux in attempting to justify his random stop---that he had called unknown persons attempting to check out the existence or non-existence of a temporary registration sticker . . . (and) . . . whether the officer acted in a reasonable manner by issuing a second citation without further information would be a question for the finder of fact". (Appellant's Brief at pp. 13-14).

Page 851

On appeal from an order granting a motion for summary judgment, the record is reviewed in light most favorable to the opposing party. Security National Bank v. Belleville Livestock Commission Co., Inc., 619 F.2d 840 (10th Cir. 1980). Where different ultimate inferences may properly be drawn, the case is not one for summary judgment, Security National Bank, supra, and questions of intent, which involve intangible factors including witness creditability, are matters for consideration of the fact finder after a full trial. Buell Cabinet Company, Inc. v. Sudduth, 608 F.2d 431 (10th Cir. 1979).

Parties like Prochaska, however, cannot rest on mere allegations or denials, but must, by affirmative response in affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial. Security National Bank, supra.

Applying these standards, we hold the Court properly granted Marcoux' motion for summary judgment. Nothing within Prochaska's deposition supported his allegation that Marcoux acted in an abusive and malicious manner in derogation of his constitutional rights. Furthermore, nothing within Prochaska's deposition rebuts Marcoux' depositional assertions that he properly cited Prochaska for operating a vessel without proper safety equipment in violation of the laws of Colorado.

Prochaska's failure to oppose Marcoux' motion for summary judgment is not saved by his allegations on appeal that "several material questions of fact" remain unanswered relative to the veracity of Marcoux' justification of stopping Prochaska, and whether Marcoux acted in a reasonable manner in issuing a second citation. This is particularly true herein, inasmuch as: the record clearly establishes the lack of any additional questions of fact; Prochaska acknowledges that he did not have a current 1976 registration sticker on his boat when Marcoux approached him; and there was no fire extinguisher in his boat, constituting a violation of the laws of Colorado.


Prochaska contends it is an unreasonable search and seizure under the Fourth and Fourteenth Amendments to stop a motor boat, being operated on a public lake, for the purpose of checking the existence of safety equipment, where there is neither probable cause to believe nor reasonable suspicion that the boat is being operated contrary to state laws relative thereto. In support of this contention, Prochaska relies on the recent Supreme Court decision of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

In Delaware v....

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