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 2022-03

Allyson Drozd v. Jeffrey McDaniel ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED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.
3