Krivolenkov v. Yandell

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LEONID P. KRIVOLENKOV, Case No. 3:22-cv-00498-SB

Plaintiff, OPINION AND ORDER

v.

LEVI S. YANDELL, JUAN M. ROLDAN,

AND DIMITRIY Y. LISICHENKO,

Defendants.

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Leonid P. Krivolenkov (“Krivolenkov”), a self-represented litigant, filed this

action against several Multnomah County Sheriff’s Office employees: Levi Yandell (“Yandell”),

Juan Roldan (“Roldan”), and Dimitriy Lisichenko (“Lisichenko”) (together, “Defendants”),

alleging constitutional and state law claims arising from Defendants’ enforcement of judicial

orders imposing a COVID-19 mask mandate in the Multnomah County Courthouse and from

Krivolenkov’s attendant arrest.

Now before the Court is Defendants’ motion for summary judgment. The Court has

jurisdiction over this matter under 28 U.S.C. §§ 1331 and 1367, and all parties have consented to

the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons discussed

below, the Court grants Defendants’ motion for summary judgment.

BACKGROUND1

On January 14, 2021, Krivolenkov entered the Multnomah County Courthouse (the

“Courthouse”). (Decl. Leonid Krivolenkov (“Krivolenkov Decl.”) Supp. Pl.’s Resp. Mot.

Summ. J. (“Pl.’s Resp.”) ¶ 6, ECF No. 42.) Security officers advised Krivolenkov that all

persons entering the Courthouse must wear a face covering. (Krivolenkov Dep. 39:5-6.2)

Krivolenkov informed the officers that a medical condition prevented him from wearing a face

mask. (Id. 32:21-24.) Krivolenkov was referring to sinus problems, a nasal septum deviation, and

seasonal allergies. (Id. 22:8-9.) The officers handed Krivolenkov a piece of paper stating that

face masks were required for entry and including the phone number that he could call to receive

an exemption. (Id. 33:21-34:17.) Krivolenkov attempted to enter the Courthouse. (Interior Video

3:08-11.3)

Defendants—employees of the Multnomah County Sheriff’s Office on duty at the

Courthouse—arrived in the Courthouse lobby. (Id. 3:34-55; Decl. Levi Yandell Supp. Defs.’

Mot. (“Yandell Decl.”) ¶¶ 1-3, ECF No. 40.) The officers told Krivolenkov that he must leave

and escorted him outside. (Interior Video 4:21-33; Krivolenkov Dep. 53:24-54:2.) In the

1 Unless otherwise noted, the following facts are either undisputed or viewed in the light

most favorable to Krivolenkov.

2 Defendants attach excerpts of Krivolenkov’s deposition testimony to their summary

judgment motion. (See Dep. Leonid Krivolenkov, March 29, 2023 (“Krivolenkov Dep.”) Supp.

Defs.’ Mot. Summ. J. (“Defs.’ Mot.”) Ex. A at 26-52, ECF No. 37.) The cited portions of his

deposition are located therein.

3 Krivolenkov submits video footage with his declaration. (See Krivolenkov Decl. ¶¶ 7-

8.) The videos include: (1) Exhibit 42, a video of the exterior of the Courthouse (“Exterior

Video”); and (2) Exhibit 43, a video of the interior of the Courthouse (“Interior Video”).

Krivolenkov submitted the videos on a DVD.

courtyard, Krivolenkov stopped. (Exterior Video 0:57-3:35.) He took out his phone and began

filming the officers. (Krivolenkov Dep. 55:9-11.) Defendant Yandell stated that Krivolenkov

would be taken to jail if he refused to leave the Courthouse property. (Id. 54:9-14.) Krivolenkov

did not leave, and the officers arrested him. (Exterior Video 0:57-4:00.) Defendant was held on

charges of Trespass in the Second Degree, Disorderly Conduct in the Second Degree, and

Obstruction of Governmental Administration, but ultimately was not charged with any criminal

offenses. (Pl.’s Resp. Exs. 14-15.4)

LEGAL STANDARDS

Summary judgment is proper if “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). At the summary

judgment stage, the court views the facts in the light most favorable to the non-moving party, and

draws all reasonable inferences in favor of that party. See Porter v. Cal. Dep’t of Corr., 419 F.3d

885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence,

or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

253 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (simplified).

DISCUSSION

Krivolenkov alleges that Defendants violated (1) the Americans with Disabilities Act

(“ADA”) and 18 U.S.C. § 245; (2) his constitutional right against false arrest without probable

cause under the Fourth Amendment; (3) his constitutional right against excessive force under the

Fourth Amendment; and (4) his constitutional right against retaliatory arrest under the First

4 Krivolenkov attaches various exhibits to his response. (See Pl.’s Resp. Exs. 1-17; 19-41

(“Pl.’s Resp. Exs.”), ECF No. 41-1.)

Amendment. (Compl. at 9-12, ECF No. 21.) Krivolenkov also asserts state law claims of false

imprisonment, assault, battery, and abuse of process against Defendants. (Id. at 10.) Defendants

move for summary judgment on all claims. (Defs.’ Mot. at 10-23.) The Court grants Defendants’

motion.

I. DISABILITY DISCRIMINATION

Krivolenkov claims that Defendants denied him entrance into the Courthouse “because of

his disability.” (Compl. ¶ 5.) As such, Krivolenkov alleges disability discrimination under

Title II of the ADA and under 18 U.S.C. § 245 against all Defendants in their individual

capacity. (Id. ¶¶ 29-32.) Defendants request summary judgment in their favor because Title II of

the ADA does not provide a cause of action against public employees in their individual capacity

and 18 U.S.C. § 245 does not provide a private right of action. (Defs.’ Mot. at 10-13.) The Court

agrees.

A. Title II of the ADA

Title II of the ADA is codified, as amended, at 42 U.S.C. § 12131 et seq. Title II provides

that “no qualified individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or activities, of a public

entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The statute

defines a “public entity” to include “any State or local government” or “any department, agency,

special purpose district, or other instrumentality of a State or States or local government.”

42 U.S.C. § 12131(1). “[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a

State official in her individual capacity to vindicate rights created by Title II of the ADA[.]”

Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002).

Krivolenkov asserts an ADA claim against Defendants in their individual capacities.

(Compl. ¶¶ 29-32.) He does not assert an ADA claim against Defendants in their official

capacities (id.), and none of the Defendants satisfy the statutory definition of a “public entity.”

See 42 U.S.C. § 12131(1). Accordingly, the Court grants summary judgment in Defendants’

favor on Krivolenkov’s Title II claim.

B. 18 U.S.C. § 245

Title 18 of the United States Code governs federal crimes and provides no basis for civil

suits. See Agnew v. City of Compton, 239 F.2d 226, 230 (9th Cir. 1956) (“Appellant first points

to 18 U.S.C.[ §§] 241 and 242. As these are criminal statutes, however, they provide no basis for

this civil suit.”), overruled on other grounds by Cohen v. Norris, 300 F.2d 24, 29 (9th Cir. 1962);

see also Cooley v. Keisling, 45 F. Supp. 2d 818, 820 (D. Or. 1999) (“18 U.S.C. § 245 is a

criminal statute and does not grant the plaintiff a private right of action.”). Accordingly, the

Court enters summary judgement for Defendants on Krivolenkov’s 18 U.S.C. § 245 claim.

II. FOURTH AMENDMENT: FALSE ARREST

Krivolenkov alleges that Defendants violated his Fourth Amendment rights by arresting

him without probable cause. (Compl. ¶ 58.) Defendants argue that they are entitled to summary

judgment because Defendants had probable cause to arrest Krivolenkov. (Defs.’ Mot. at 13-15.)

The Court agrees.5

A. Applicable Law

“Under the Fourth Amendment, a warrantless arrest requires probable cause.” United

States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing Michigan v. Summers, 452 U.S. 692,

700 (1981)). Probable cause to arrest exists “when officers have knowledge or reasonably

trustworthy information sufficient to lead a person of reasonable caution to believe that an

5 The Court does not reach Defendants’ argument that they are entitled to qualified

immunity because the Court enters summary judgment in Defendants’ favor on the merits of

each of Krivolenkov’s constitutional claims. (See Defs.’ Mot. at 18-19.)

offense has been or is being committed by the person being arrested.” Lopez, 482 F.3d at 1072

(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). Alternatively stated, probable cause exists when

“under the totality of circumstances known to the arresting officers, a prudent person would have

concluded that there was a fair probability that the defendant had committed a crime.” Lopez,

482 F.3d at 1072 (simplified); see also Hill v. City of Fountain Valley, 70 F.4th 507, 515 (9th

Cir. 2023) (so stating).

Claims for false arrest focus on the validity of the arrest, not on the validity of each

individual charge. See Barry v. Fowler, 902 F.2d 770, 773 n.5 (9th Cir. 1990) (noting that

because the defendant officer had probable cause to arrest the plaintiff for one charge, the arrest

was not unconstitutional even if the officer lacked probable cause for another charge); see also

Lacy v. Cnty. of Maricopa, 631 F. Supp. 2d 1183, 1194 (D. Ariz. 2008) (collecting cases). Thus,

“if there was probable cause for any of the charges made . . . then the arrest was supported by

probable cause, and the claim for false arrest fails.” Price v. Roark, 256 F.3d 364, 369 (5th Cir.

2001) (simplified); see also Rodrigues v. Cnty. of Haw., No. 18-00027 ACK-RLP, 2018 WL

6070336, at *10 n.8 (D. Haw. Nov. 20, 2018) (“Because a claim for false arrest focuses on the

validity of the arrest, not of each individual charge, the existence of probable cause for any of the

charges made will cause a claim for false arrest to fail.”). The existence of probable cause is a

complete defense to a claim for wrongful arrest. See Hutchinson v. Grant, 796 F.2d 288, 290 (9th

Cir. 1986) (concluding that “[a] police officer has immunity if he arrests with probable cause”);

Cabrera v. Huntington Park, 159 F.3d 374, 380 (9th Cir. 1988) (“To prevail on his [Section]

1983 claim for false arrest . . . [the plaintiff] would have to demonstrate that there was no

probable cause to arrest him.”).

///

“Generally, ‘the existence of probable cause is a question for the jury,’ though summary

judgment is appropriate when there is no genuine issue of fact and if ‘no reasonable jury could

find an absence of probable cause under the facts.’” Johnson v. Barr, No. 21-16547, 2023 WL

5332314, at *6 (9th Cir. Aug. 18, 2023) (quoting Gasho v. United States, 39 F.3d 1420, 1428

(9th Cir. 1994)).

B. Analysis

Defendants are entitled to summary judgment on Krivolenkov’s false arrest claim

because no reasonable jury could find an absence of probable cause to arrest him.

Under Oregon law, “[a] person commits the crime of criminal trespass in the second

degree if the person enters or remains unlawfully . . . in or upon premises.” OR. REV. STAT.

(“O.R.S.”) § 164.245(1). A person “enters or remains unlawfully” when that person “fail[s] to

leave premises that are open to the public after being lawfully directed to do so by the person in

charge.” O.R.S. § 164.205(3).

Here, Krivolenkov entered the Courthouse—premises open to the public—without a face

covering. (Krivolenkov Decl. ¶ 6.) An officer informed him that all persons entering the

Courthouse were required to wear a face covering, absent an approved exemption, pursuant to

judicial order. (Krivolenkov Dep. 32:21-24.) Krivolenkov nonetheless attempted to enter the

Courthouse. (Interior Video 3:08-11.) Defendants informed Krivolenkov that he must leave.

(Krivolenkov Dep. 53:24-54:2.) After being escorted outside to the Courthouse’s courtyard,

Krivolenkov stopped. (Exterior Video 0:57-3:35.) Defendants again informed him that he must

leave. (Krivolenkov Dep. 54:9-14.) Krivolenkov did not leave and began filming with his cell

phone. (Id. 55:9-11.) The Court finds that given the totality of these circumstances, Defendants

had personal knowledge of information sufficient to lead a person of reasonable caution to

believe that there was a fair probability that Krivolenkov was committing the offense of trespass

in the second degree. See Lopez, 482 F.3d at 1072 (describing the standard for probable cause).6

In response, Krivolenkov argues, first, that Defendants arrested him on a public sidewalk,

and, accordingly, Defendants did not have lawful authority to direct him to leave. (Pl.’s Resp. at

8.) However, Krivolenkov points to no evidence indicating that he left Courthouse property.

Instead, the video submitted by Krivolenkov reveals that Krivolenkov remained within the

Courthouse’s walled courtyard at the time of the arrest. (See generally Exterior Video.) Further,

in his deposition, Krivolenkov acknowledged that he told Defendants that he “declined to leave”

the Courthouse. (Krivolenkov Dep. 70:1-7.) Krivolenkov has not established a genuine issue of

material fact with respect to his assertion that he had exited Courthouse property at the time of

arrest.

Second, Krivolenkov argues that Defendants could not lawfully direct him to leave the

Courthouse because he was engaged in the constitutionally protected activity of filming

Defendants. (Pl.’s Resp. at 8.) In support, Krivolenkov relies on State v. Dameron for its holding

that “[i]f a person has a state constitutional right to remain on premises, that right may be raised

as a defense to a charge of criminal trespass.” 316 Or. 448, 457 (1993), overruled on other

grounds by Stranahan v. Fred Meyer, Inc., 331 Or. 38 (2000).

In Dameron, the Oregon Supreme Court concluded that the defendant had a right to

peaceably seek petition signatures in a large, privately-owned shopping center open to the public

for commercial purposes and that the state had failed to prove that the defendant was “lawfully

6 The Court notes that the “beyond a reasonable doubt” standard Krivolenkov cites (Pl.’s

Resp. at 6) would be the applicable standard for the state to obtain a conviction if the state had

pursued criminal charges against him, but it is not the relevant standard for an arrest. See, e.g.,

Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015) (“[P]robable cause can well

exist (and often does) even though ultimately, a jury is not persuaded that there is proof beyond a

reasonable doubt.”).

directed” to leave or that he had “remained unlawfully” on the premises for the purpose of

criminal trespass in the second degree. 316 Or at 462. In Stranahan, the Oregon Supreme Court

overruled portions of Dameron, concluding that the Oregon Constitution does not confer a right

to solicit signatures on certain private property over the owner’s objection. 331 Or. at 66.

Krivolenkov had no unfettered constitutional right to remain on Courthouse property to

film police officers after being told to leave. Article I, section 8, of the Oregon Constitution does

not bar an arrest for trespass accompanying expression or speech. See State v. Babson, 355 Or.

383, 387 (2014) (rejecting a facial challenge to the defendants’ convictions for second-degree

criminal trespass for conducting an overnight vigil on the steps of the state capitol). Enforcement

of laws that do not explicitly restrict speech may violate the Oregon Constitution only if the

laws, as applied, “impermissibly burden protected expression.” City of Eugene v. Miller, 318 Or.

480, 490 (1994); see also State v. Robertson, 293 Or. 402, 417 (1982) (laying out the framework

for analysis under Article I, section 8, and explaining that laws that do not reference expression

may be challenged as applied). For example, in Miller, the Oregon Supreme Court concluded

that the relevant law had been unconstitutionally applied to burden protected expression because

it treated the sale of expressive materials “more restrictively” than it treated the sale of other

materials without “any rational basis” or “reasonabl[e] justif[ication].” 318 Or. at 491-92.

Here, Krivolenkov’s arrest for criminal trespass did not impermissibly burden his

protected expression. Even viewing the facts in the light most favorable to Krivolenkov, the

record before the Court demonstrates that Defendants had a rational basis and reasonable

justification to arrest Krivolenkov and that Defendants did not arrest Krivolenkov because he

was filming. Indeed, no one told Krivolenkov to stop filming. (Krivolenkov Dep. 55:12-14.)

Instead, Defendants had already asked Krivolenkov to leave the Courthouse premises and he

refused to do so before he began using his phone to record. (Id. 53:24-54:2.) In light of these

facts, the Court concludes that no reasonable jury could find that Defendants lacked probable

cause to arrest Krivolenkov for second-degree trespass, and therefore the Court grants summary

judgment in Defendants’ favor on the false arrest claim.7 See Dickerson v. City of Portland, No.

3:19-cv-01126-SB, 2020 WL 7391267, at *3 (D. Or. Dec. 16, 2020) (granting summary

judgment on the plaintiff’s false arrest claim because probable cause existed for his arrest), aff’d,

No. 20-36121, 2022 WL 824588 (9th Cir. Mar. 18, 2022).

III. FOURTH AMENDMENT: EXCESSIVE FORCE

Krivolenkov alleges in his complaint that Defendants violated his Fourth Amendment

right against excessive force at several points in time: (1) while inside the Courthouse,

Defendants “push[ed] him in[] the back” and “grabb[ed] his arm and shov[ed] him towards the

exit” (Compl. ¶ 6); (2) when arresting him, Defendants “grab[bed his] arms and fingers twisting

them, causing injury to wrist, hand, and nerve damage” and “bruising to his rib cage and scrapes

on the leg” (id. ¶ 17; Pl.’s Resp. Exs. 19-40); and (3) after his arrest, Defendant Lisichenko

“continued to inflict physical injury/pain to [Krivolenkov] by holding his arm with ‘excessive

and objectively unreasonable’ force.” (Compl. ¶ 21.) Defendants argue that the Court should

enter summary judgment on Krivolenkov’s excessive force claim because the force that

Defendants used was reasonable under the circumstances. (Defs.’ Mot. at 15-17.) The Court

agrees.

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7 Because the Court concludes that Defendants had probable cause to arrest Krivolenkov

for second-degree trespass, the Court does not address whether Defendants had probable cause to

arrest him for the other offenses. See Barry, 902 F.2d at 773 n.5 (noting that because the

defendant officer had probable cause to arrest the plaintiff for one charge, the arrest was

constitutional even if the officer lacked probable cause for another charge).

A. Applicable Law

It is a “fundamental premise that the use of force to effect an arrest is subject to the

Fourth Amendment’s prohibition on unreasonable seizures.” Chew v. Gates, 27 F.3d 1432, 1440

(9th Cir. 1994) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “There is . . . no

mechanical test for determining whether a particular application of force was unreasonable; the

reasonableness of a seizure must instead be assessed by carefully considering the objective facts

and circumstances that confronted the arresting officer or officers.” Chew, 27 F.3d at 1440

(citing Graham, 490 U.S. at 396); see also Bey v. Malec, No. 18-cv-02626-SI, 2020 WL

2041940, at *4 (N.D. Cal. Apr. 28, 2020) (“The reasonableness inquiry in excessive force cases

is an objective one, the question being whether the officer’s actions are objectively reasonable

considering the facts and circumstances confronting him, without regard to his underlying intent

or motivation and without the ‘20/20 vision of hindsight.’” (quoting Graham, 490 U.S. at 396)).

“In assessing the objective reasonableness of a particular use of force, we consider: (1)

‘the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type

and amount of force inflicted,’ (2) ‘the government’s interest in the use of force,’ and (3) the

balance between ‘the gravity of the intrusion on the individual’ and ‘the government’s need for

that intrusion.’” Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc)

(quoting Glenn v. Wash. Cnty., 673 F.3d 864, 871 (9th Cir. 2011)). Importantly, “not every push

or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the

Fourth Amendment.” Graham, 490 U.S. at 396 (simplified). Indeed, “Fourth Amendment

jurisprudence has long recognized that the right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of physical coercion or threat thereof to

effect it.” Id.

Summary judgment is appropriate if the court “concludes, after resolving all factual

disputes in favor of the plaintiff, that the officer’s use of force was objectively reasonable under

the circumstances.” Scott v. Henrich, 39 F.3d 912, 915-16 (9th Cir. 1994) (affirming entry of

summary judgment for the defendant officers where the district court concluded that the officer’s

use of force was “at all times . . . reasonable and proper”).

B. Analysis

Resolving all factual disputes in favor of Krivolenkov, the Court concludes that

Defendants’ use of force here was objectively reasonable under the circumstances.

“In weighing the governmental interests involved the following should be taken into

account: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat

to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting

to evade arrest by flight.” Chew, 27 F.3d at 1440 (citing Graham, 490 U.S. at 396). “These

factors, however, are not exclusive.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010).

“Rather, we examine the totality of the circumstances and consider ‘whatever specific factors

may be appropriate in a particular case, whether or not listed in Graham.’” Bryan, 630 F.3d at

826 (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)).

Here, the governmental interest in the use of force was minimal. Krivolenkov’s suspected

crimes were not particularly severe. See Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th

Cir. 2007) (denying qualified immunity based on a violent arrest of a “relatively calm trespass

suspect”). Additionally, Defendants have not argued that Krivolenkov posed an immediate threat

to the safety of the officers or others or that Krivolenkov actively resisted arrest or attempted to

evade arrest by flight.8 (Defs.’ Mot at 17.) However, even though the governmental interest in

the use of force was minimal, the amount of force Defendants used was also minimal.

Specifically, viewing the facts in the light most favorable to Krivolenkov, Defendants

pushed him in the back, grabbed his arms, and twisted his fingers. (Compl. ¶¶ 6, 17, 21.)

Krivolenkov submitted evidence of scratches and bruises (but has not submitted any evidence of

nerve damage). (See Pl.’s Resp. Exs. 19-40.) Krivolenkov denied medical attention following his

arrest, and he did not subsequently seek medical treatment for any of his injuries. (Decl. Andrew

Weiner Supp. Defs.’ Mot. Ex. 5 at 2, ECF No. 38; Krivolenkov Dep. 92:12-24.)

On this record, the Court finds that the intrusion here “was less significant than most

claims of force.” Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994) (“The police

did not threaten or use deadly force and did not deliver physical blows or cuts. Rather, the force

consisted only of physical pressure administered on [the plaintiff’s] limbs in increasing degrees,

resulting in pain.”). Given the minimal amount of force Defendants used, and considering the

fact that Krivolenkov did not seek out medical attention after the arrest, the Court finds that

Defendants’ use of force was objectively reasonable. Accordingly, the Court enters summary

judgment for Defendants on Krivolenkov’s excessive force claim. See Bratcher v. Polk Cnty.,

No. 3:20-cv-02056-SB, 2022 WL 17184419, at *9 (D. Or. Sept. 1, 2022) (granting summary

judgment for defendants when the plaintiff suffered scratches when escorted to the patrol car and

did not require subsequent medical attention), findings and recommendation adopted, No. 3:20-

cv-2056-SB, 2022 WL 17178266 (D. Or. Nov. 23, 2022); see also Hous.-Hines v. Hous. Indep.

Sch. Dist., No. Civ.A. H-04-3539, 2006 WL 870459, at *5 (S.D. Tex. Apr. 5, 2006) (finding that

8 However, there is some evidence in the record that Krivolenkov “briefly struggled”

when Defendants arrested him, but Defendants “were able to gain control after just a few

moments.” (Yandell Decl. ¶ 12; see also Exterior Video 3:36-4:00.)

the plaintiff had not raised a genuine issue of material fact to support excessive force claim

where the alleged injuries suffered during an arrest were “scratches and bruises[,]” explaining

that “it is undisputed that [the plaintiff never] sought any treatment for such injuries” and the

plaintiff received only “de minimis injuries during the incident”).

IV. FIRST AMENDMENT

Krivolenkov alleges that Defendants violated his First Amendment right against

retaliatory arrest by arresting him while he was recording them with his cell phone. (Compl.

¶ 51.) Defendants argue that the Court should enter summary judgment in their favor because

Defendants did not arrest Krivolenkov because he was filming but instead because he refused to

leave the Courthouse premises. (Defs.’ Mot. at 17-18.) The Court grants summary judgment for

Defendants on Krivolenkov’s First Amendment claim.

“As a general matter the First Amendment prohibits government officials from subjecting

an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S.

Ct. 1715, 1722 (2019) (simplified). “To prevail . . . , a plaintiff must establish a ‘causal

connection’ between the government defendant’s ‘retaliatory animus’ and the plaintiff’s

‘subsequent injury.’” Id. (quoting Hartman v. Moore, 547 U.S. 250, 259 (2006)). “The presence

of probable cause should generally defeat a First Amendment retaliatory arrest claim.” Nieves,

139 S. Ct. at 1726. There is a “narrow” exception “where officers have probable cause to make

arrests, but typically exercise their discretion not to do so.” Id. at 1727. “[T]he no-probable-cause

requirement should not apply when a plaintiff presents objective evidence that he was arrested

when otherwise similarly situated individuals not engaged in the same sort of protected speech

had not been.” Id.

Krivolenkov has not established a genuine issue of material fact with respect to his

assertion that retaliatory animus was the cause of his arrest. He has not introduced any evidence

that he was arrested when otherwise similarly situated individuals were not arrested. As

explained above, no reasonable jury could conclude that Defendants lacked probable cause for

Krivolenkov’s arrest. Accordingly, the Court grants summary judgment for Defendants on

Krivolenkov’s First Amendment claim. See Hill, 70 F.4th at 518 (“[T]he Court in Nieves held

that the existence of probable cause defeats a retaliatory arrest claim.”); Baker v. Clearwater

Cnty., No. 22-35011, 2023 WL 3862511, at *2 (9th Cir. June 7, 2023) (affirming grant of

summary judgment on the plaintiff’s retaliatory arrest claim because the deputy had probable

cause for the arrest and the plaintiff failed to point to objective evidence sufficient to trigger the

narrow exception).

V. STATE LAW CLAIMS

Krivolenkov alleges state law claims for false imprisonment, assault, battery, and abuse

of process. (Compl. ¶¶ 33-40.) The Court grants Defendants’ motion for summary judgment on

all state law claims.9

A. False Imprisonment

For the reasons discussed above, Krivolenkov has failed to present a genuine dispute of

material fact with respect to whether his arrest was unlawful, and therefore the Court grants

summary judgment on his false imprisonment claim. See Mouktabis v. Clackamas Cnty., 327 Or.

App. 763, 775 (2023) (explaining that the existence of probable cause renders an arrest lawful as

a matter of law for the purpose of a false imprisonment claim); Laizure v. Wash. Cnty. by &

9 Defendants are correct (see Defs.’ Mot. at 19-20) that to the extent Krivolenkov seeks

damages less than or equal to the damages permitted under the Oregon Tort Claims Act, the

appropriate defendant with respect to Krivolenkov’s state claims is Multnomah County, not

Defendants. See Harpole v. Boston, No. 2:22-cv-01033-HZ, 2023 WL 5806250, at *4 (D. Or.

Sept. 4, 2023) (“Under the Oregon Tort Claims Act, unless a plaintiff alleges damages greater

than that specified in Oregon Revised Statute §§ 30.271, 30.272, or 30.273, the sole cause of

action for a tort committed by officers, employees or agents of a public body acting within the

scope of their employment . . . is an action against the public body.”) (simplified).

through Wash. Cnty. Sheriff’s Off., No. 3:17-cv-01254-SB, 2021 WL 4073275, at *2 (D. Or.

Sept. 7, 2021) (granting summary judgment for the defendants on the plaintiff’s false

imprisonment claim because of the presence of probable cause for arrest).

B. Assault and Battery

“In Oregon, ‘assault’ is defined as the intentional attempt to engage in harmful or

offensive contact.” Trustus LLC v. Catlin Ins. Servs., Inc., No. 1:20-cv-00082-CL, 2020 WL

6994247, at *3 (D. Or. Nov. 3, 2020) (citing Cook v. Kinzua Pine Mills Co., 207 Or. 34, 48

(1956)), findings and recommendation adopted, 2021 WL 932015 (D. Or. Mar. 10, 2021).

“‘Battery’ is the intent to cause harmful or offensive contact with the person of another.” Trustus

LLC, 2020 WL 6994247, at *3 (citing Cook, 207 Or. at 48). “Both assault and battery require the

intent not only to do an act, but the intent to do violence and personal injury to the person

assaulted.” Trustus LLC, 2020 WL 6994247, at *3 (simplified).

The Court enters summary judgment for Defendants on Krivolenkov’s assault and battery

claims because Krivolenkov has not presented any facts to support a conclusion that Defendants

intended to inflict harmful or offensive contact when they arrested him. See Evans v. Multnomah

Cnty., No. 3:07-cv-01532-BR, 2013 WL 1700940, at *7 (D. Or. Apr. 17, 2013) (granting

summary judgment on the plaintiff’s battery claim where “none of Plaintiff’s arguments point to

an evidentiary record from which rational jurors could have found [that the sergeant] intended to

cause personal injury to Plaintiff”).

C. Abuse of Process

“Abuse of process is the perversion of legal procedure to accomplish an ulterior purpose

when the procedure is commenced in proper form and with probable cause.” Singh v.

McLaughlin, 255 Or. App. 340, 355 (2013) (simplified). “Thus, to prevail on an abuse of process

claim, a plaintiff must prove some ulterior purpose, unrelated to the process, and a willful act in

the use of the process that is not proper in the regular conduct of the proceeding.” /d.

Krivolenkov has not presented any evidence that Defendants had an ulterior purpose for

threatening to take Krivolenkov to jail or for Krivolenkov’s ultimate arrest. As a result,

Defendants are entitled to summary judgment on Krivolenkov’s abuse of process claim. See

Rubin v. Oregon, No. 3:19-cv-01377-IM, 2022 WL 2713904, at *8 (D. Or. July 13, 2022)

(granting summary judgment on the plaintiff's abuse of process claim because the plaintiff

produced “no non-speculative evidence that Defendants were motivated in any way to silence”

the plaintiff).

CONCLUSION

For the reasons stated, the Court GRANTS Defendants’ motion for summary judgment

(ECF No. 37).

IT ISSO ORDERED.

DATED this 21st day of September, 2023. bY, 7 Ka

STC 1) athena]

HON. STACIE F. BECKERMAN

United States Magistrate Judge

PAGE 17 —- OPINION AND ORDER