Allyson Drozd v. Jeffrey McDaniel

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 21-35584
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALLYSON DROZD, No. 21-35584

Plaintiff-Appellant, D.C. No. 3:17-cv-00556-HZ

v. MEMORANDUM* JEFFREY MCDANIEL, individually,

Defendant-Appellee,

and

CITY OF PORTLAND; et al.,

Defendants.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted March 10, 2022 Portland, Oregon

Before: GRABER, BEA, and M. SMITH, Circuit Judges.

Plaintiff-Appellant Allyson Drozd appeals from a jury verdict for Defendant-

Appellee Jeffrey McDaniel on Drozd’s claim that McDaniel retaliated against Drozd

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. in violation of the First Amendment of the Constitution. Because the parties are

familiar with the facts, we do not recount them here, except as necessary to provide

context for our ruling. We review de novo whether verdict forms were legally

erroneous. See United States v. Stinson, 647 F.3d 1196, 1218 (9th Cir. 2011) (“We

treat verdict forms like jury instructions . . . .”); Fireman’s Fund Ins. Cos. v. Alaskan

Pride P’ship, 106 F.3d 1465, 1469 (9th Cir. 1997) (“We review de novo whether the

instructions misstated the law . . . .”). But we do not reverse if any error was

harmless. See Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014).

Drozd argues that McDaniel retaliated against Drozd’s exercise of First

Amendment rights by threatening Drozd with pepper spray. The district court

formulated verdict forms that reflected the district court’s position that McDaniel

was entitled to qualified immunity as to this ‘threatened pepper spray’ theory. Drozd

claims that this embedded qualified immunity ruling was legal error. But any error

by the district court was harmless. A necessary element of Drozd’s retaliation claim

is that McDaniel had a retaliatory motive. See Skoog v. County of Clackamas, 469

F.3d 1221, 1232 (9th Cir. 2006), abrogated in part on other grounds by Nieves v.

Bartlett, 139 S. Ct. 1715 (2019). And despite going to trial, Drozd failed to adduce

“specific, nonconclusory” evidence that could convince a reasonable jury that

McDaniel had such a motive as to Drozd. Jeffers v. Gomez, 267 F.3d 895, 907 (9th

Cir. 2001) (per curiam) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).

2 AFFIRMED.