OpenJurist

898 F2d 154 Morgan v. Fulmer Jj

898 F.2d 154

Ray MORGAN, Plaintiff-Appellant,
v.
FULMER, Sgt.; J.J. Schneider, Trooper, Defendants-Appellees.

No. 89-3611.

United States Court of Appeals, Sixth Circuit.

March 15, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before RALPH B. GUY, Jr., and BOGGS, Circuit Judges, and AVERN COHN, District Judge.*

ORDER

2

Ray Morgan appeals the judgment of the district court in favor of defendants dismissing his cause of action filed pursuant to 42 U.S.C. Sec. 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Seeking monetary damages, Morgan brought suit against two members of the Ohio State Patrol. He alleged that they violated his constitutional rights by their alleged use of force when they arrested him for driving while intoxicated, by making a false arrest and by subjecting him to a malicious prosecution.

4

The district court granted summary judgment in favor of defendants. Morgan appealed.

5

Upon review, we affirm the dismissal of plaintiff's complaint because there can be no question in light of the pleadings and affidavits in support, that the defendants had probable cause to stop Morgan. Furthermore, we find no error in the district court's order of February 14, 1989, granting defendants summary judgment as to the conduct of defendants with regard to the initial stop, including the alleged use of abusive language and the striking of plaintiff.

6

Finally, therefore, Morgan's arrest, incarceration and prosecution for driving while intoxicated in violation of Ohio Revised Code Sec. 4511.19, cannot support Morgan's claims for false arrest and/or malicious prosecution. The district court did not err.

7

Accordingly, for the reasons set forth by the district court in its decisions dated February 14, 1989 and May 31, 1989, we hereby affirm judgment of the district court pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation