799 F.2d 1396 (9th Cir. 1986), 84-4175, Johnson v. Barker

Docket Nº:84-4175.
Citation:799 F.2d 1396
Party Name:Russell M. JOHNSON, Dale A. Peterson, and Otto V. Sieber, Plaintiffs-Appellants, v. George BARKER, William Closner, Grant Hansen, Robert Leick, and Skamania County, Washington, Defendants-Appellees.
Case Date:September 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1396

799 F.2d 1396 (9th Cir. 1986)

Russell M. JOHNSON, Dale A. Peterson, and Otto V. Sieber,



George BARKER, William Closner, Grant Hansen, Robert Leick,

and Skamania County, Washington, Defendants-Appellees.

No. 84-4175.

United States Court of Appeals, Ninth Circuit

September 18, 1986

        Argued and Submitted May 6, 1986.

Page 1397

        Michael D. Hunsinger, Neubauer, Mair, Abercrombie & Hunsinger, Seattle, Wash., for plaintiffs-appellants.

        F. Ross Burgess, Tacoma, Wash., H. Roland Hofstedt, Merrick, Hofstedt & Lindsey, Seattle, Wash., for defendants-appellees.

        Appeal from the United States District Court for the Western District of Washington.


        Before WRIGHT, ANDERSON, and JOHN T. NOONAN, Circuit Judges.

        J. BLAINE ANDERSON, Circuit Judge:

        Russell Johnson, Dale Peterson and Otto Sieber (appellants) brought this civil rights action against Skamania County, Washington and four Skamania County officials pursuant to 42 U.S.C. Sec. 1983 (1976). The district court granted summary judgment in favor of Skamania County and its officials. We affirm.

Page 1398


        On May 18, 1980, a major volcanic eruption shook Mt. St. Helens in Washington. Appellants, led by Sieber, were members of a film crew making a film about the volcano. On May 23, 1980, appellants entered the Mt. St. Helens area and began hiking toward the top so as to complete their filmmaking endeavors. They hiked through the night and, at approximately 11:00 a.m. the next morning, May 24, appellants were spotted on the mountain by an Army helicopter pilot flying a search and rescue sortie. The helicopter landed and the pilot offered appellants a ride off the mountain. Appellants refused, stating that they intended to continue hiking to Spirit Lake. The pilot gave appellants a map and a compass, and then returned to report the incident to other search and rescue authorities.

        After completing their filming the same day, appellants began hiking back down the mountain. At approximately 2:00 p.m., a helicopter carrying Skamania County Deputy Sheriff George Barker landed near appellants. Barker issued citations to appellants and refused appellants' request to fly them off the mountain. Appellants further allege that Barker, before taking off in his helicopter, forced appellants to change their route down the mountain. Appellants claim that as a result of the new route, which was the longer route they had used to go up the mountain the previous day, they were forced to spend another night on the mountain. During that night, Mt. St. Helens erupted again, raining ash and mud upon appellants. Unable to hike the rest of the way off the mountain, appellants eventually had to be rescued by helicopter.

        The citations received by appellants were for violating an executive order that established restricted access zones around the mountain. Counsel for appellants notified Skamania County Deputy Prosecutor Grant Hansen that appellants were never within the restricted access zones and, therefore, had not violated the executive order. After looking into the matter further, Hansen confirmed that appellants were not within the forbidden zones as originally thought. Hansen informed appellants' counsel, however, that the Sheriff's office was pushing for a prosecution and that appellants might have illegally entered a broader restricted zone that was then in existence. Upon further study, Hansen determined that the broader zone had not been properly disclosed to the public, thus eliminating any possible prosecution on those grounds. Hansen dismissed the original charges and filed a new complaint on September 10, 1980, charging appellants with attempting to violate the executive order. No trial was held on these charges, however. On February 13, 1981, a Washington Superior Court granted a Writ of Prohibition filed by appellants on the ground that they had been denied their right to a speedy trial.

        On June 1, 1983, appellants filed this civil rights action seeking damages for various torts allegedly committed under color of state law. Named in the suit as defendants were Barker, Hansen, Sheriff William Closner, Prosecutor Robert Leick, and Skamania County. Closner, Barker and Skamania County were charged with false arrest, false imprisonment and abuse of process. In addition, Closner was charged with malicious prosecution and defamation, while Skamania County was charged with defamation. Leick and Hansen were charged with malicious prosecution and abuse of process, and Leick was included in the defamation claim. On August 20, 1984, the district court granted summary judgment in favor of defendants on all counts except as to the false arrest claim against Barker. Appellants voluntarily dismissed that count and brought this appeal of the summary judgment.


        We review the grant of summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). Summary judgment is proper if, viewing the evidence in the light most favorable to appellants, no genuine issue of material fact remains for trial and defendants are entitled to prevail under the applicable substantive law. Demoran v. Witt, 781 F.2d 155, 156...

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