Cisneros v. City of Klamath Falls
| Decision Date | 26 May 2022 |
| Docket Number | Civ. No. 1:19-cv-00296-CL |
| Citation | 604 F.Supp.3d 1114 |
| Parties | Elizabeth CISNEROS; Antonio Cisneros; Carlos Faiers, Plaintiffs, v. CITY OF KLAMATH FALLS, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Elizabeth W. Armitage, Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, Medford, OR, Kellie A. Furr, Cauble, Selvig & Whittington, LLP, Portland, OR, Christopher L. Cauble, Cauble, Cauble & Selvig, LLP, Grants Pass, OR, Rachele R. Selvig, Davis, Hearn, Anderson & Selvig, Ashland, OR, for Plaintiffs.
Gerald L. Warren, Law Office of Gerald L. Warren and Associates, Salem, OR, Aaron Hisel, Rebeca A. Plaza, Kenneth S. Montoya, Law Offices of Montoya, Hisel and Associates, Salem, OR, for Defendants.
Plaintiffs Elizabeth Cisneros, Antonio Cisneros, and Carlos Faiers bring this cause of action against the City of Klamath Falls and several municipal officials, including Klamath Falls Police Chief David Henslee, City Manager Nathan Cherpeski, and City Councilor Kendell Bell. The case comes before the Court on a Motion for Summary Judgment, ECF No. 37, submitted by all Defendants. Defendants also move to strike some of Plaintiffs’ evidence.
Magistrate Judge Mark Clarke issued a Findings and Recommendation ("F&R") on the motions. ECF No. 62. Defendants filed their Objections to the F&R, ECF No. 73, and Plaintiffs have filed their Response to the Objections, ECF No. 79. For the reasons set forth below, the Court ADOPTS the F&R as modified. Defendant's motion to strike is DENIED, and Motion for Summary Judgment, ECF No. 37, is GRANTED in part and DENIED in part. Plaintiffs concede that named Defendants Eric Nobel and William Adams should be DISMISSED from the case and the Court accepts those concessions. In summary, Plaintiffs have failed to carry their burden to show a dispute of material fact regarding their claims under the Fourteenth Amendment for procedural due process and substantive due process violations. Defendants’ Motion for Summary Judgment is granted on those claims.
Plaintiffs have raised a sufficient dispute of material fact regarding their claim for discrimination under the Equal Protection Clause against the City of Klamath Falls and the individual Defendants, as well as their claim for intentional infliction of emotional distress under Oregon state law. Issue preclusion does not apply, and Defendants are not entitled to qualified immunity.
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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (). 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, 106 S.Ct. 466. 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."
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Devereaux v. Abbey , 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). The court cannot weigh the evidence or determine the truth, but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles , 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505.
When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at 250, 106 S.Ct. 2505. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux , 263 F.3d at 1076. In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles , 66 F.3d 1052, 1056 (9th Cir. 1995).
Plaintiffs are Hispanic family members who are the former and current owners of a Mexican restaurant and lounge called El Palacio in Klamath Falls, Oregon. The Cisneros's operated El Palacio in downtown Klamath Falls in a prominent, landmark building between 2004 and 2017. Their son, Carlos Faiers, is the current owner of the business. Plaintiffs claim that the City of Klamath Falls ("the City"), the Klamath Falls Police Department ("KFPD") at the direction of Chief Henslee, and two city officials, Councilor Bell and City Manager Cherpeski, discriminated against them and targeted them for a higher level of law enforcement activity due to their race.
By contrast, Defendants assert that KFPD, the City, and Chief Henslee were attempting to address the serious and pervasive criminal activity that plagued downtown Klamath Falls for many years. They argue that law enforcement incidents that occurred at or near El Palacio were a result of Plaintiffs failing to abate the over-consumption of alcohol on the premises and failing to cooperate with law enforcement activity meant to keep the community safe.
Finally, Defendants assert that the City officials were doing their jobs to investigate and hold Plaintiffs accountable for the criminal activity taking place at their establishment.
The parties have submitted hundreds of pages of exhibits, declarations, and affidavits to support their arguments in this litigation. This evidence establishes certain facts that are not in dispute—namely that the downtown Klamath Falls area was subject to a high level of alcohol related criminal activity, and the Klamath Falls Police Department sought to address and abate such activity in a number of ways, including increased law enforcement presence and patrolling in that area. It is undisputed that officers reported numerous incidents involving El Palacio patrons and patrons of other downtown establishments, and it is undisputed that many of those incidents were attributed to El Palacio. What is disputed, however, is whether that attribution was accurate, and whether Defendants’ focus on El Palacio was due to Plaintiffs’ race.
Plaintiffs claim that on July 31, 2015, a KFPD officer entered El Palacio and told Elizabeth Cisneros to shut the bar down. Id. at ¶ 7. Ms. Cisneros stated that the officer did not have any legal authority to shut the bar down and she refused to do so. Id. The officer identified himself as the new Chief of KFPD, David Henslee. Id. Chief Henslee was new to Klamath Falls, having moved there a couple of months earlier for the position. On August 13, 2015, Chief Henslee sent a letter to Plaintiff Elizabeth Cisneros advising that El Palacio "has been the location of a pattern of activity that has the potential to cause the subject property to be declared a ‘Public Nuisance’ as defined by City Code." Henslee Decl. at 14. Chief Henslee further advised that if this pattern of behavior continued, the City could make a Public Nuisance declaration. Id. Chief Henslee's letter provided the dates, times, violations and number of arrests for eight incidents that occurred between February 21, 2015, and July 5, 2015. Id. Plaintiffs claim that, over the next year, the Cisneros family worked with Chief Henslee to address what Chief Henslee considered to be issues at El Palacio. Id. at 9.
El Palacio is one of many bars in a few-block-radius in downtown Klamath Falls. Id. at 8. Directly across the street from El Palacio is a bar called The Pikey, while the Basin Martini Bar and 618 are on the same block, and Black Dog Billiards and the VFW are within a couple of blocks. Id. The downtown Klamath Falls area has a reputation for being a rowdy place with patrons often circulating between the establishments on weekend nights. Id. at ¶ 8; Oldham Dep. 27:12-28:11, 86:3-12 (attached to Decl. Selvig as Ex. 1). Plaintiffs submit evidence that all the establishments in this area have issues with these patrons. Decl. E. Cisneros ¶10, 11; Decl. Faiers ¶ 7; Oldham Dep. 31.:13-32:18. Plaintiffs claim that they were cooperative and attended meetings with Chief Henslee, changed their security company, hired more security, and closed earlier on weekends in an effort to solve the issues. Decl. E. Cisneros ¶ 9.
For reasons unknown to Plaintiffs, the first Notice of Public Nuisance issued by Chief Henslee in August 2015 was dropped without further action. However, despite this, and despite their efforts at cooperation, Plaintiffs claim that soon after the first...
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