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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CLAIRE MARIE LUENEBURG and SARA

MICHELLE ECCLESTON,

 Plaintiffs,

 v.

EVERETT SCHOOL DISTRICT NO. 2,

 Defendant.

CASE NO. C05-2070RSM

ORDER GRANTING IN PART

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the Court on defendant’s Motion for Summary Judgment. 

(Dkt. #16). Defendant argues that plaintiffs’ claims fail as a matter of law because: (1) the

school newspaper at issue in this action is a nonpublic forum, and therefore defendant had the

right to delete the proposed masthead under both federal and state law; (2) even if the

newspaper was an open public forum, defendant had the right to change the nature of that

forum; and (3) the school principal has the right to review the newspaper prior to publication

under both federal and state law. Plaintiffs respond that summary judgment is not appropriate

because material facts are in dispute. (Dkt. #20). Plaintiffs further respond that the school

paper is a limited public forum, not a nonpublic forum, and plaintiffs are entitled to remedies

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ORDER

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under both state and federal law.

For the reasons set forth below, the Court agrees in part with plaintiffs, and GRANTS

IN PART and DENIES IN PART defendant’s motion for summary judgment.

II. BACKGROUND

Plaintiffs, Claire Lueneberg and Sara Eccleston, are former students of Everett High

School (“EHS”) in Everett, WA, who served as co-editors in chief of the Kodak, the school’s

student newspaper. Ms. Lueneberg began serving as co-editor in 2005. Ms. Eccleston also

began serving as co-editor in 2005. Ms. Deborah Kalina taught journalism and publications

classes at EHS beginning in the 2004/2005 school year. She also served as faculty advisor to

the Kodak. Prior to Ms. Kalina, Ms. Shirley Ferguson served as the faculty advisor to the

Kodak from 1989 to 2004.

The Kodak is a school-sponsored newspaper. Its staff is comprised of EHS students. 

The Kodak was published several times a semester, and was primarily funded by the sale of

advertising to local businesses, and expenses were paid through an Associated Student Body

(“ASB”) account at the high school. According to plaintiffs, the students were responsible for

the sale of advertising, pricing, billing and placement of advertisements. Likewise, the students

controlled the content, layout and production of the paper, and were responsible for all of the

major editorial decisions. Student editors decided what topics the paper would cover,

developed story ideas and assigned stories to student journalists. The faculty advisor provided

advice about what stories to run, and checked grammar and spelling so that she could provide

grades to the students in the journalism class. According to both Ms. Kalina and Ms. Ferguson,

the faculty advisor did not regulate what subjects students covered, nor did the advisor prohibit

or edit the content of the articles chosen by the student editors for publication. The Kodak

covers a wide variety of topics, and has included such controversial topics as sex education,

suicide, drug and alcohol abuse and sexual orientation.

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ORDER

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In April of 2005, the Kodak published an article about the selection of the new, and now

current, principal Ms. Catherine Matthews. The article focused on the student committee’s

involvement in the selection process, and noted that Ms. Matthews had been its third choice out

of five. The headline for the article read, “EHS New Principal: Third Choice for Student

Committee.”

On or about May 13, 2005, Dr. Greg Johnson, an assistant principal at EHS, came to

Ms. Kalina’s classroom and informed her that Ms. Matthews had visited the school and had seen

a copy of the story written about her selection. Dr. Johnson informed Ms. Kalina that Ms.

Matthews had threatened to sue her personally, as well as EHS.

At the beginning of the 2005-2006 school year, Ms. Matthews began as principal. In

September 2005, she learned that there was someone in the community who may be willing to

publish the Kodak for free. She then met with Ms. Kalina and plaintiffs, along with Steve

Powell from the Everett Herald, to discuss the offer. At that meeting, plaintiffs shared their

proposed masthead for the paper. It read:

The KODAK is a student forum for the student body of Everett High School.

We are not subject to prior review by administrators, faculty or community

members. Editorial decisions are made by the student editors-in-chief and the

editorial board. Our right to free speech is guaranteed under the First

Amendment of the Constitution and under the Revised Code of Washington

(RCW) Article 1, Section 5. Student free speech is also protected by Everett

School District Policy 3220.

Ms. Matthews objected to the language, explaining that she was concerned that it violated

School Board policy. She informed plaintiffs of her concerns and told them that she would not

allow them to use the masthead as it was written. She also told them that they could delete the

masthead, revise the masthead, or accept the District’s proposed version of a masthead. 

Plaintiffs refused.

Plaintiffs allege that this was simply one of many acts of retaliation by Ms. Matthews

after the article about her selection had been published in the Kodak. Plaintiffs note that not

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1

 Plaintiffs allege that Ms. Matthews also retaliated against them by barring them from presenting

a skit about censorship at the “Goin’ Clubbin’” assembly.

ORDER

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only did Ms. Matthews object to the masthead, she also demanded that she be allowed to review

the newspaper prior to publication. Plaintiffs refused to allow prior review on the basis that

prior review had never been required by principals in the past, and that it violated their free

speech rights. In response, in late November, Ms. Matthews published the newspaper without

the masthead, and without permission from plaintiffs.

The next day, November 28, 2005, plaintiffs read an announcement over the school’s

public address system, informing students that the October issue of the Kodak had been printed

and distributed without the newspaper staff’s knowledge or consent. Immediately afterwards,

Ms. Matthew revised the rules governing student announcements, requiring approval by

administrators prior to any announcement being read over the public address system.1

This lawsuit and the instant motion for summary judgment followed.

III. LEGAL STANDARD

Summary judgment is proper where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986). The Court must draw all reasonable inferences in favor of the non-moving party. See

F.D.I.C. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992), rev’d on other grounds,

512 U.S. 79 (1994). The moving party has the burden of demonstrating the absence of a

genuine issue of material fact for trial. See Anderson, 477 U.S. at 257. Mere disagreement, or

the bald assertion that a genuine issue of material fact exists, no longer precludes the use of

summary judgment. See California Architectural Bldg. Prods., Inc., v. Franciscan Ceramics,

Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 

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Genuine factual issues are those for which the evidence is such that “a reasonable jury

could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. Material facts are

those which might affect the outcome of the suit under governing law. See id. In ruling on

summary judgment, a court does not weigh evidence to determine the truth of the matter, but

“only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d

547, 549 (9th Cir. 1994) (citing O’Melveny & Meyers, 969 F.2d at 747). Furthermore,

conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat

summary judgment. Anheuser-Busch, Inc. v. Natural Beverage Distributors, 60 F. 3d 337, 345

(9th Cir. 1995). Similarly, hearsay evidence may not be considered in deciding whether material

facts are at issue in summary judgment motions. Anheuser-Busch, Inc. v. Natural Beverage

Distribs., 69 F.3d 337, 345 (9th Cir. 1995); Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F. 2d

665, 667 (9th Cir. 1980).

IV. DISCUSSION

It has long been held that public school students do not “shed their constitutional rights

to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines

Independent Community School Dist., 393 U.S. 503, 506 (1969)). Indeed, they cannot be

punished merely for expressing their personal views on the school premises, unless school

authorities have reason to believe that such expression will “substantially interfere with the work

of the school or impinge upon the rights of other students.” Id. at 509. However, the United

States Supreme Court has also recognized that the First Amendment rights of public school

students “are not automatically coextensive with the rights of adults in other settings,” Bethel

School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and must be “applied in light of

the special characteristics of the school environment.” Tinker, at 506. See also Morse v.

Frederick, __ U.S. __, 2007 U.S. LEXIS 8514, at *7-8 (June 25, 2007). Specifically, a school

need not tolerate student speech that is inconsistent with its “basic educational mission,” Fraser,

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ORDER

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at 685, even when the government could not censor similar speech outside of a school.

The seminal case addressing the extent to which educators may exercise control over the

contents of high school publications is Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260

(1988). There, the Supreme Court recognized that, “‘[t]he determination of what manner of

speech in the classroom or in school assembly is inappropriate properly rests with the school

board,’ rather than with the federal courts. It is in this context that . . . First Amendment claims

must be considered.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. at 267. The Ninth Circuit

Court of Appeals follows Hazelwood, and directs that courts examining this issue:

must assume that school-sponsored publications are nonpublic and that unless

the schools affirmatively intend to open a forum for indiscriminate use,

restrictions reasonably related to the school’s mission that are imposed in the

context of school-sponsored publications do not violate the first amendment.

Planned Parenthood of Southern Nev. v. Clark County School Dist., 941 F.2d 817 (9th Cir.

1991). Thus, in the instant case, this Court must address: (1) whether the Kodak is a forum for

public expression; (2) whether the Kodak bears the imprimatur of the school, such that it is

within the intended purpose for which the forum is reserved; and (3) whether Ms. Matthews and

Everett School District No. 2 were justified in refusing to accept the masthead proposed by

plaintiffs and requiring review by the principal prior to publication. See id. at 820.

Plaintiffs have brought suit against defendant under the First Amendment of the United

States Constitution, 42 U.S.C. § 1983, Article 1, Section 5 of the Washington State Constitution

and the Revised Code of Washington (RCW) 28A.645.010, seeking to redress the alleged

deprivation of First Amendment rights. As noted above, plaintiffs claim that defendant violated

their rights under the First and Fourteenth Amendments by refusing to publish the masthead

proposed by plaintiffs and by requiring review of the newspaper by the principal prior to

publication. Plaintiffs further allege that the actions taken by defendant were retaliation for a

story printed about the selection of Ms. Matthews as principal, denying plaintiffs access to and

participation in school announcements, assemblies, and the school newspaper. The Court first

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turns to plaintiffs’ arguments concerning the proposed masthead.

A. Student Expression - Masthead

Plaintiffs are former EHS students, who acted as co-editors-in-chief of the Kodak at all

time relevant to this action. Defendant, Everett School District No. 2, is a municipal

corporation located in Snohomish County, Washington, and its purposes include providing

educational opportunities and maintaining and managing Everett High School. Defendant

authorizes EHS to publish a school newspaper. The Kodak was written, edited, produced and

published through a publications class, which is part of EHS’s regular curriculum. The class is

taught by a teacher/adviser employed by defendant, who selected student editors from the

members of the class. Students in the class are graded on their work and given course credit

that appears on their official school transcripts. Defendant paid Kodak expenses through an

ASB account at EHS. The Kodak was subject to defendant’s policies and procedures.

In March 1995, defendant adopted (and subsequently updated in March 2001) Policy

3220, which states its opinion on freedom of expression. The policy states:

The free expression of student opinion is an important part of education in a

democratic society. Students’ verbal and written expression of opinion on

school premises is encouraged so long as it does not substantially disrupt the

operation of the school. Students are expressly prohibited from the use of

vulgar and/or offensive terms in classroom or assembly settings.

The Superintendent shall develop guidelines assuring that students are able to

enjoy free expression of opinion while maintaining orderly conduct of the

school.

(Dkt. #21, Ex. 9). At the same time, defendant adopted Procedure 3220P, which set forth a

process by which a principal would determine whether expression was considered disruptive.

In September 1997, defendant adopted (and subsequently updated in March 2001) Policy

3221, pertaining to student publications. The policy states:

Student publications produced as part of the school’s curriculum or with the

support of the associated student body fund are intended to serve both as

vehicles for instruction and student communication. They are operated and

substantively financed by the district.

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Material appearing in such publications should reflect all areas of student

interest, including topics about which there may be controversy and dissent.

Controversial issues may be presented provided they are treated in depth and

represent a variety of viewpoints. Such materials may not: be libelous,

obscene or profane; cause a substantial disruption of the school, invade the

privacy of others; demean any race, religion, sex, or ethnic group; or,

advocate the violation of the law or advertise tobacco products, liquor, illicit

drugs, or drug paraphernalia.

The superintendent shall develop guidelines to implement these standards and

shall establish procedures for the prompt review of any materials which appear

not to comply with the standards.

(Dkt. #21, Ex. 6).

Shortly thereafter, defendant adopted Procedure 3221P, providing:

The student publications instructor or advisor shall have the primary

responsibility for supervising student publications and to see that provisions

incorporated into the policy and procedures are met. The principal may

request to review any copy prior to its publication. Such copy shall be

returned to the student editors within 24 hours after it has been submitted for

review.

Any dispute that cannot be resolved at the building level shall be submitted to

the Superintendent for further consideration. When appropriate, the

Superintendent shall seek legal counsel. If the complaint cannot be resolved

at that level, the Board, upon request, shall consider the complaint at its next

regular meeting.

While the District believes that students should be encouraged to exercise

good judgment in the content of the student publication program, such

expressive writing must be in keeping with the school’s instructional mission

and values. Material must be free of content that: runs counter to the

instructional program; invades the privacy of individuals; demeans or

otherwise damages individuals or groups; supports the violation of school

rules or, is inappropriate for the maturity level of the students. Such

publication activities must also teach respect for the sensitivity of others and

standards of civility as well as the elements of responsible journalism.

(Dkt. #21, Ex. 7).

In September 2005, plaintiffs proposed the following masthead for the Kodak:

The KODAK is a student forum for the student body of Everett High School.

We are not subject to prior review by administrators, faculty or community

members. Editorial decisions are made by the student editors-in-chief and the

editorial board. Our right to free speech is guaranteed under the First

Amendment of the Constitution and under the Revised Coade of Washington

(RCW) Article 1, Section 5. Student free speech is also protected by Everett

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School District Policy 3220.

(Dkt. #17 at 3). Ms. Matthews objected to the masthead based on her conclusion that the

language did not accurately describe the kind of forum to which the Kodak belongs. (Dkt. #17

at 3). She also felt the language directly conflicted with Board policy. As a result, she directed

the students to alternatives, and asked to review the paper before it was published. She asserts

that it was never her intent to censor student articles or editorials. Instead, she wanted to make

sure that the issue complied with Board policy and did not contain materials which are

prohibited by Board policy. (Dkt. #17 at 3).

The parties agree that the masthead is protected speech under the first amendment. 

Therefore, the Court must first resolve whether the Kodak is a forum for public expression. 

Hazelwood, 484 U.S. at 267; Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797

(1985). 

In Hazelwood, the Supreme Court directed that “school facilities may be deemed to be

public forums only if school authorities have ‘by policy or by practice’ opened those facilities

‘for indiscriminate use by the general public,’ or by some segment of the public, such as student

organizations.” 484 U.S. at 267 (citing Perry Education Ass’n v. Perry Local Educators’

Ass’n., 460 U.S. 37, 47 (1983)). “If, on the other hand, school facilities have been reserved for

other intended purposes, ‘communicative or otherwise,’ no public forum will have been created

and reasonable restrictions on speech may be imposed.” Planned Parenthood of S. Nev., 941

F.2d at 822 (citation omitted). When identifying the relevant forum, courts focus “on the access

sought by the speaker.” Cornelius, 473 U.S. at 801. Here, the school’s intent is the critical

factor in the forum calculus. Hazelwood, 484 U.S. at 267.

In determining whether school officials evinced any intent to open the Kodak to

indiscriminate use, this Court looks at a variety of factors, including, but not limited to:

(1) whether it was produced as part of the school curriculum; (2) whether students received

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ORDER

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grades and academic credit for completing the course, which a faculty member taught;

(3) whether the school ever deviated in its practice from its policy of publishing the paper as part

of the school curriculum; (4) whether the faculty advisor/teacher exercised a great deal of

control over the production of the paper; (5) whether the faculty advisor or principal was

required to review and approve each issue prior to publication; and (6) what school board

policies and procedures say about student publications. See Planned Parenthood of S. Nev.,

941 F.2d at 823.

In the instant case, there is no dispute that the Kodak was produced as part of the school

curriculum, that students received grades and academic credit for completing the course, and

that the Kodak was supervised by a faculty advisor who also taught the publications class. 

Further, there is no dispute that board policy and procedures specifically allowed for review by

the principal prior to publication, and that the Kodak was produced as part of the school’s

curriculum and intended to serve both as a vehicle for instruction and as student communication. 

The Kodak was published by, and expenses were paid through, the school district.

However, plaintiffs have produced evidence that the Kodak was not maintained

exclusively as part of the school curriculum. Indeed, the Kodak was listed as a school club in

the student handbook, it participated in campus day activities, and it was presented at the

freshman and 8th grade orientations as a club for students. In addition, staff members often

worked long hours outside of the school day to edit and produce each issue. The students also

sold advertising on the weekends, and engaged in various fundraising activities in support of the

Kodak. In addition, both plaintiffs and the most recent faculty advisors , Ms. Kalina and Ms.

Ferguson, insist that the advisors asserted very little control over the paper. They state that the

students controlled every major facet of the operating, production and publication of the Kodak.

(Dkts. #23, #24, #25 and #29). Further, they state that, historically, students had never been

prevented from publishing articles on controversial topics, and that the paper had never been

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reviewed by the principal prior to publication. Publications in other high schools in the district,

such as Cascade High School’s Stehikin newspaper and Tyro magazine, operated in the same

manner. Thus, the Court agrees with plaintiffs that there are genuine issues of material fact with

respect to whether school officials clearly intended to create a nonpublic forum, or whether the

Kodak was intended to operate as a limited public forum.

As a result, defendant’s argument that it may limit what has previously been an open

forum is now premature. Defendant argues that if the Court is persuaded the Kodak is

something other than a nonpublic forum, the law allows a school district to reassert control over

forums within schools. Defendant relies on DiLoreto v. Downey Unified School Dist., 196 F.3d

958 (9th Cir. 1999), in support of its argument. Because the Court has found that factual

questions pertaining to the type of forum categorizing the Kodak remain to be resolved, it is not

necessary to address defendant’s argument at this time. However, nothing prevents defendant

from raising the argument again, should the finder of fact determine that the Kodak is a limited

public forum as plaintiffs assert.

B. Prior Review by Principal

Defendant next argues that prior review of the newspaper by Ms. Matthews is not a prior

restraint under either federal or state law. Specifically, defendant asserts that since the preview,

by and of itself, does not prohibit any publication, it is not a prior restraint. Instead, defendant

argues that the preview merely regulates the time of when the paper will be published and the

manner in which the publication will occur. The Court agrees.

Washington law imposes a stricter standard of review than federal law over allegations

of a prior restraint of protected speech. See State v. E.J.Y., 113 Wn. App. 940, 946 (2002)

(noting that free speech is interpreted more broadly under the Washington constitution than

under the federal constitution); DCR, Inc. v. Pierce County, 92 Wn. App. 660, 675 (1998)

(explaining that if an alleged action constitutes a prior restraint on protected speech, the

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Washington constitution affords greater protection than the federal constitution). Thus, if

defendant’s actions do not constitute prior restraint under Washington law, neither would they

constitute prior restraint under federal law. In Washington, a prior restraint is defined as an

administrative or judicial order forbidding communications prior to their occurrence. DCR, 92

Wn. App. At 675. “Simply stated, a prior restraint prohibits future speech, as opposed to

punishing past speech.” Id. However, it is well-settled that government may impose reasonable

time, place, and manner restrictions on speech that is (1) content neutral, (2) narrowly tailored

to serve a substantial governmental interest, and (3) leave open alternative channels for

communication. Id. At 676.

In this case, the Court agrees with defendant that the review process itself is not a prior

restraint because it does not actually prohibit any publication. See Weaver v. United States Info.

Agency, 87 F.3d 1429, 1441-42 (D.C. Cir. 1996) (finding the review requirement at issue to be

permissible because it did not prevent publication, but simply required review prior to

publication). It is true that if the principal decides that particular material is inappropriate, and

forbids the Kodak staff from publishing it, the review process could lead to a prior restraint. 

However, simply requiring that the principal be allowed to review the Kodak, and that the

principal complete the review 24 hours before the paper is published, does not itself prohibit

future speech, and therefore, does not constitute a prior restraint.

Likewise, the Court agrees with defendant that the procedure is not unlawfully broad. 

Everett Board Policy 1312 provides the superintendent with the authority to develop

administrative procedures that ensure consistent implementation of board policies. (Dkt. #32,

Ex. 7). A process by which a principal may review a school newspaper prior to publication

allows the principal to determine whether something comports with board policy or raises

concern. Thus, the Court finds that Procedure 3221P is not overbroad. For these reasons, the

Court finds that summary judgment in favor of defendant is appropriate, and plaintiffs’ prior

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restraint claims must be dismissed.

C. Cause of Action Under Washington State Constitution

Defendant next argues that plaintiffs’ claims pursuant to Article 1, Section 5 of the

Washington State Constitution must be dismissed because that constitution affords no greater

protection than the federal constitution when the forum for expression is a nonpublic forum. 

Defendant further argues that there is no private right of action for monetary damages under that

section. The Court is not persuaded.

Defendant has misinterpreted the holdings of the cases it relies on in support of its

position. Benjamin v. WSBA does not stand for the proposition that no private cause of action

for monetary damages under Article 1, Section 5 exists. Indeed, in Benjamin, the Washington

State Supreme Court explicitly noted that the WSBA could be sued under Article I, Section 5 of

the state constitution. 138 Wn.2d 506, 516 n. 49 (1999). However, “[a]ssertion of more rights

under the Washington Constitution than under the federal constitution requires a Gunwall

analysis.” Id. (citations omitted). Because the appellant did not provide that analysis, the court

chose not to address “whether there is an implied cause of action under the free speech clause of

the state constitution.” Id. Likewise, Reid v. Pierce County, which addresses Article 1, Section

7 of Washington’s Constitution, makes no direct comment on Section 5, and merely determined

that “Plaintiffs may obtain adequate relief under the common law and [] such actions are better

addressed under the common law invasion of privacy action.” 136 Wn.2d 195, 213 (1998). 

Accordingly, the court declined to reach the issue of whether a private cause of action under the

state constitution existed. Id. Finally, Furfaro v. City of Seattle, is not persuasive. There, the

Washington Supreme Court found that “United States Supreme Court cases decided subsequent

to O’Day, [a Washington Supreme Court case], are more authoritative indications of the amount

of protection given to nude dancing by the First and Fourteenth Amendments to the United

States Constitution.” 144 Wn.2d 363, 371-372 (2001). The court made no comment on

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2

 The Court agrees that there can be no § 1983 claim for violation of the Washington state

constitution. Therefore, to the extent that plaintiffs assert such claim, that claim is dismissed. Furfaro,

144 Wn.2d 363, 376 (2001) (explaining that “a claim under article I, sections 5 and 7 of the Washington

State Constitution does not come within the scope of 42 U.S.C. § 1983.”).

ORDER

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whether a private cause of action under Article 1, Section 5 existed.2

 More importantly,

Washington courts that have performed a Gunwall analysis have often found that Article 1,

Section 5 offers more protection than the federal constitution. Ino Ino, Inc. v. City of Bellevue,

132 Wn.2d 103, 117-19 (1997); Alderwood Assocs. v. Wash. Envtl. Council, 96 Wn.2d 230,

244 (1981) (concluding that “section 5 . . . [is] applicable when, after balancing all the interests,

the balance favors the speech and initiative activity.”). Accordingly, we are not persuaded by

defendant that plaintiffs do not have a private cause of action under the Washington State

Constitution.

Defendants argue that, even if this Court recognizes a private cause of action under the

state constitution, plaintiffs’ claims must fail because the Kodak is a public forum, subject to

reasonable restrictions, and is afforded no greater protection under Washington’s constitution

than under the federal constitution. For the reasons set forth above, the Court finds this

argument premature. It declines to address this argument until the finder of fact has resolved

factual issues pertaining to the type of forum characterizing the Kodak. Nothing in this Order

prevents defendant from raising the argument in the future, should it become appropriate. 

D. Retaliation

Lastly, this Court notes that defendant argues for the first time in its Reply brief that no

actionable retaliation exists in this case, and therefore plaintiffs’ retaliation claims should be

dismissed. However, this Court declines to consider arguments raised for the first time in a

Reply brief because plaintiffs were afforded no opportunity to respond. Accordingly, the Court

finds that summary judgment is not appropriate on those claims.

V. CONCLUSION

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ORDER

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The Court, having reviewed defendant’s motion, plaintiffs’ opposition, defendant’s reply,

the declarations and exhibits in support of those briefs, and the remainder of the record, hereby

ORDERS that defendant’s Motion for Summary Judgment (Dkt. #16) is GRANTED IN PART

and DENIED IN PART as set forth above. The Clerk shall forward a copy of this Order to all

counsel of record.

DATED this 13th day of July, 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

Case 2:05-cv-02070-RSM Document 41 Filed 07/13/07 Page 15 of 15