# Boudjerada v. City of Eugene

> District Court, D. Oregon · March 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10397210

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397210

## How later opinions describe it (automated extraction)

- affirming a district court which declined to consider qualified immunity when raised for the first time in objections

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

HASHEEM BOUDJERADA;
DAMON COCHRAN-SALINAS;
ERIN GRADY; TYLER HENDRY;
KIRTIS RANESBOTTOM,

Plaintiffs, No. 6:20-cv-01265-MK

v. ORDER

CITY OF EUGENE; SARAH
MEDARY; WILLIAM SOLESBEE;
SAMUEL STOTTS; BO RANKIN;
TRAVIS PALKI; MICHAEL CASEY;
RYAN UNDERWOOD; CRAIG
WRIGHT; CHARLES SALSBURY;
CHIEF CHRIS SKINNER,

Defendants.
_______________________________________
AIKEN, District Judge.
This case comes before the Court on a Findings and Recommendation filed by
Magistrate Judge Mustafa Kasubhai on September 8, 2023. ECF No. 192. Judge
Kasubhai recommends that the Motion for Summary Judgment filed by Defendants
City of Eugene, Medary, and Skinner, ECF No. 147, be GRANTED in part and
DENIED in part; that the Motion for Summary Judgment filed by Defendants
Underwood, Casey, Palki, Stotts and Rankin, ECF No. 137, be GRANTED; and that

the Motion for Summary Judgment filed by Defendant Solesbee, Wright, and
Salsbury, ECF No. 132, be GRANTED.
Under the Federal Magistrates Act, the Court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’s findings and
recommendations, “the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is

made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate judge’s findings and recommendations to
which neither party has objected, the Act does not prescribe any standard of review.
See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress,
in enacting [the Act], intended to require a district judge to review a magistrate’s
report to which no objections are filed.”). Although no review is required in the

absence of objections, the Magistrates Act “does not preclude further review by the
district judge[] sua sponte . . . under a de novo or any other standard.” Id. at 154. The
Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely
objection is filed,” the court should review the recommendation for “clear error on the
face of the record.”
In this case, Defendants City of Eugene, Medary,` and Skinner have filed
Objections, ECF No. 198, to which Plaintiffs have filed a Response, ECF No. 202, and
Plaintiffs have filed Objections, ECF No. 200, to which the Defendants Casey, Palki,

Ranki, Solesbee, Stotts, Underwood, and Wright have filed a Response, ECF No. 201.
I. Defendants’ Objections
First, Defendants asserts that Judge Kasubhai erred by failing to discuss the
information the City officials considered in issuing the City-Wide Curfew. Def. Objs.
2-3. This information was, however, discussed at length in Judge Kasubhai’s
previous F&R (the “May F&R”), ECF No. 187, which was incorporated by reference
into the present F&R. Of note, Defendants did not object to the May F&R and this

Court adopted the F&R as its own decision on June 8, 2023. ECF No. 189. There
was no need for Judge Kasubhai to restate the detailed discussion and analysis from
the May F&R in the present F&R.
Defendants also object that Judge Kasubhai failed to consider or discuss
Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005), and instead relied on the
precedent set by Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996). However, Judge

Kasubhai discussed Menotti extensively in the May F&R and concluded that Menotti
was not factually analogous to the present case. May F&R, at 16-19. Judge Kasubhai
concluded that Collins was much more factually analogous. May F&R, at 15. In light
of that prior ruling there was no need for Judge Kasubhai to revisit the question of
whether Menotti was a more analogous case than Collins.
Finally, Defendants object to Judge Kasubhai’s denial of summary judgment
on Plaintiff’s third claim for relief, which alleges violation of Plaintiffs’ First
Amendment rights pursuant to 42 U.S.C. § 1983. The crux of this issue, as framed

by Judge Kasubhai, is as follows: “[I]n the context of an allegedly retaliatory decision
to restrict speech, must the official imposing the restriction be aware of the individual
plaintiff’s ultimately injured by the restriction, or is evidence supporting a general
animus towards individuals engaged in the same type of speech sufficient.” F&R, at
19. Here, Judge Kasubhai found the inquiry into retaliatory intent was not tied to
the individual protestors, but to the animus of the officials against the protestors as
a group, citing Johnson v. City of San Jose, Case No. 21-cv-01849-BLF, 2022 WL

17583638, at *5-6 (N.D. Cal. Dec. 12, 2022). The Court notes that the retaliatory
animus must often be found from circumstantial evidence and involves questions of
fact that normally should be left for trial. Ulrich v. City & Cnty. of San Francisco,
308 F.3d 968, 979 (9th Cir. 2002). The Court finds no error in Judge Kasubhai’s
conclusion on this issue.
Relatedly, Defendants point out that the F&R does not include a discussion of

qualified immunity as to Medary and Skinner for Plaintiffs’ Third Claim, despite
qualified immunity having been raised in Defendants’ Motion for Summary
Judgment. The Court has reviewed the briefing on Defendant’s Motion for Summary
Judgment and notes that, while the motion mentions qualified immunity in passing,
Defendants presented no specific arguments concerning qualified immunity as to
Plaintiffs’ Third Claim and focus almost entirely on the merits of the claim. Def. Mot.,
at 1. ECF No. 147; Def. Reply Br., at 2. ECF No. 184. The Court finds that
Defendants did not present any argument on the application of qualified immunity
to Plaintiff’s Third Claim in their motion when it was before Judge Kasubhai and

they present only a superficial mention of the subject in their objections, essentially
leaving it to the Court to invent a qualified immunity argument on Defendants’
behalf. The Court has discretion not to consider arguments raised for the first time
in objections. Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012); Farquhar v. Jones,
141 F. App’x 539, 540 (9th Cir. 2005) (affirming a district court which declined to
consider qualified immunity when raised for the first time in objections).
Nevertheless, the Court concludes that Judge Kasubhai appropriately

distinguished the facts of this case from Nieves v. Bartlett, 587 U.S. ___, 139 S. Ct.
1715 (2019) and that Plaintiffs right to be free of retaliation for the exercise of their
right to protest was clearly established at the time of the challenged conduct. See
Mendocino Envir. Center v. Mendocino Cnty., 192 F.3d 1283, 1300-01 (9th Cir. 1999)
(describing test for retaliation for the exercise of constitutionally protected conduct);
Collins, 110 F.3d at 1371 (“Activities such as demonstrations, protest marches, and

picketing are clearly protected by the First Amendment.”). As Judge Kasubhai found,
there is a question of fact as to whether the circumstantial evidence in this case will
support a finding of retaliatory animus, but that does not alter the fact that the right
in question was clearly established. The Court declines to grant the motion for
summary judgment on grounds of qualified immunity.
The Court adopts the F&R as to those portions to which Defendants offer
objections.
II. Plaintiffs’ Objections

Plaintiffs’ objections cover three general areas. First, they object that Judge
Kasubhai erred by finding that the individual officers were entitled to qualified
immunity for enforcing the City-Wide Curfew. Next, they object to the grant of
summary judgment in favor of the Campbell Club Defendants, arguing that (1) the
Fourteenth Amendment permits claims for deliberate indifference for injuries
sustained bystanders; and (2) that there are questions of fact as to whether
Defendants were targeting one of the Plaintiffs or the Campbell Club house

specifically. Finally, Plaintiffs assert that Judge Kasubhai erred in granting
summary judgment on the claim for supervisory liability as to Defendant Salsbury.
Judge Kasubhai recommended that summary judgment be granted in favor of
Defendants Underwood, Casey, Palki, Stotts, and Rankin on Plaintiffs’ Fifth Claim,
for unlawful arrest in violation of the Fourth Amendment. This concerns arrests
carried out by individual officer Defendants to enforce the city-wide curfew. Judge

Kasubhai distinguished between the claims brought against the Defendants who
formulated the City-Wide Curfew and the individual officer Defendants tasked with
enforcing it. Judge Kasubhai found that individual officer Defendants were entitled
to qualified immunity under Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th
Cir. 1994). The Court finds no error in Judge Kasubhai’s determination on that point.
As an additional clarification to the F&R at 22 n.4, the parties agree that
Plaintiff Hendry was not arrested for disorderly conduct.
The Court has reviewed the remaining objections concerning the Campbell

Club Defendants and Defendant Salsbury and finds no error.
CONCLUSION
The Court ADOPTS the F&R as modified. The Court GRANTS in part and
DENIES in part the Motion for Summary Judgment filed by Defendants City of
Eugene, Medary, and Skinner as set forth in the F&R. ECF No. 147. The Court
GRANTS the Motion for Summary Judgment filed by Defendants Underwood, Casey,
Palki, Stotts, and Rankin. ECF No. 137. The Court GRANTS the Motion for

Summary Judgment filed by Defendants Solesbee, Wright, and Salsbury. ECF No.
132.
It is so ORDERED and DATED this _2_6_t_h_ day of March 2024.

/s/Ann Aiken
ANN AIKEN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397210. Public record. Not legal advice.