                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                          FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                       MAY 19, 2011
                                            No. 11-10029                JOHN LEY
                                        Non-Argument Calendar             CLERK
                                      ________________________

                              D.C. Docket No. 3:08-cv-00063-WS-MD

DANIEL R. THOMPSON,
CATHY A. THOMPSON,

llllllllllllllllllllllllllllllllllllllll                 Plaintiffs - Appellees,

    versus

WENDELL HALL,
in his official capacity as Sheriff of
Santa Rosa County, Florida,
JERRY D. UTSEY,
In his individual capacity,

llllllllllllllllllllllllllllllllllllllll                 Defendants - Appellants,

JIM COATS,
in his official capacity as Sheriff
of Pinellas County, Florida, et al.,

lllllllllllllllllllllllllllllllllllllllll                Defendants.
                           ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          ________________________

                                   (May 19, 2011)

Before CARNES, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendants Sheriff Wendall Hall and Deputy Sheriff Jerry Utsey appeal

from the district court’s denial of their motion to dismiss Count VIII of Plaintiffs’

Third Amended Complaint based on the defense of qualified immunity. After

review, we reverse and remand.

                                I. BACKGROUND

A.    Third Amended Complaint

      On February 15, 2008 Plaintiffs Daniel and Cathy Thompson filed this

lawsuit pursuant to 42 U.S.C. §§ 1983 and 1988, alleging violations of the First,

Fourth, and Fourteenth Amendments. Their Third Amended Complaint names six

defendants: (1) Sheriff Wendell Hall, individually and in his official capacity as

Sheriff of Santa Rosa County, Florida, and three Santa Rosa County deputies,

Aaron A. Jasper, John Younghanse, and Jerry D. Utsey, all individually; and (2)

Sheriff Jim Coats, in his official capacity as Sheriff of Pinellas County, Florida,

                                          2
and one Pinellas County Deputy, Richard Farnham, individually.

      Plaintiffs’ Third Amended Complaint contains ten counts, including two

state law claims and eight claims under 42 U.S.C. § 1983. Most of the counts are

against only one of the defendants, but all counts relate to the events on the night

of September 20, 2004, when police, including Defendant Pinellas County Deputy

Farnham, arrested Plaintiff Daniel Thompson and his neighbor, Ed Knowling, in

their neighborhood.

      The only claim on appeal is the § 1983 claim in Count VIII, which alleges

Defendants Santa Rosa County Sheriff Hall and Deputy Utsey violated Plaintiffs’

First Amendment rights. We recite the factual allegations pertaining to Count VIII

as against Defendants Hall and Utsey.

B.    Allegations in Count VIII

      On January 20, 2005, Defendant Sheriff Hall hosted a town hall meeting in

Gulf Breeze, Florida. Sheriff Hall introduced himself, made some remarks, and

opened the floor to questions.

       During the 2005 meeting, Plaintiff Daniel Thompson asked Sheriff Hall “if

he was doing anything about his case.” Thompson “went on to describe his case

as involving him being beaten and tased by a Pinellas County Deputy [Farnham]

after [H]urricane Ivan.” Pinellas County Deputy Farnham was later convicted of

                                          3
violating Daniel Thompson’s civil rights and was sentenced to 12 months in

federal prison for using unreasonable force against Thompson. See United States

v. Farnham, No. 3:06-CR-456-RV (N.D. Fla. Apr. 24, 2007) (final judgment

order).

      Sheriff Hall stated he knew nothing about the case. “Defendant Sheriff Hall

hastily turned around and told Deputy Steve Collier to ‘deal with this.’” After the

meeting, news media published articles about Plaintiff Thompson’s confrontation

of Sheriff Hall. Sheriff Hall told the media he had looked into the case.

      Plaintiffs claim that because Daniel Thompson and Ed Knowling confronted

Defendant Sheriff Hall at the town hall meeting, “Defendant Sheriff Hall ordered

Defendant Utsey to re-open the investigation to bring new criminal charges

against Daniel Thompson.” Defendant Sheriff Hall, through Deputy Collier,

ordered “Defendant Utsey . . . to record all of the interviews and have the

investigation finished before a date certain.” According to Plaintiffs, Deputy

Collier ordered Deputy Utsey to “make [the] charges stick.”

      After the media stories about the meeting were published, Sheriff Hall

initiated a supervisor’s inquiry into whether the Thompsons and Knowling were

victims of abuse by police. Santa Rosa Sheriff Deputy Tomlinson was assigned

the task of investigating the allegations of police misconduct. However, according

                                         4
to Plaintiffs, Defendant Utsey was told to focus on the criminal case against

Daniel Thompson and Knowling.

      In March 2005, Defendant Deputy Utsey interviewed Defendant Deputy

Farnham. Plaintiffs claim that although “Defendant Utsey felt that Defendant

Farnham’s story [regarding what happened on the evening of September 20, 2004]

was not true,” Utsey “did not notify his chain of command nor did he incorporate

the inconsistencies into his supplemental report.” Defendant Utsey interviewed

other officers on the scene that night, but according to Plaintiffs, “avoided asking

any questions about whether there was any misconduct on the night in question”

and “intentionally avoided any issues about police misconduct.”

      Defendant Utsey’s summary of the witness statements was incorporated into

a supplement to the offense report from the night of the arrests. Plaintiffs allege

Utsey’s supplemental offense report failed to summarize accurately the witness

statements.

      Defendant Sheriff Hall then gave Utsey’s supplemental offense report to the

State Attorney, allegedly in order to persuade the State Attorney to prosecute

Daniel Thompson.

      Plaintiffs further allege that “[d]uring the period between October 2004 and

March 17, 2005, [they] observed an exponential increase in the presence of the

                                          5
Santa Rosa County Sheriff’s department. Deputies would drive by their

properties, stop, and point at their homes.” Cathy Thompson also “observed

deputies following her to and from work.”1

       Plaintiffs further allege that although Defendant Sheriff Hall learned

through his chief deputy that there were complaints about his deputies harassing

witnesses, he did nothing to follow up on such complaints.

C.     District Court’s Order

        Defendants Hall and Utsey jointly moved to dismiss Count VIII, claiming

qualified immunity. On December 6, 2010, the district court denied Hall’s and

Utsey’s joint motion. Hall and Utsey now appeal the district court’s denial of their

motion to dismiss Count VIII.2 All other counts in the Third Amended Complaint

remain pending.

                                     II. DISCUSSION

A.     Qualified Immunity Principles



1
 The Third Amended Complaint contains allegations that Utsey harassed an unnamed neighbor
and that deputies followed Barbara Knowing to and from work, but neither the unnamed
neighbor nor Barbara Knowing is a plaintiff in this case.
2
 “The denial of absolute or qualified immunity on a motion to dismiss is an appealable
interlocutory order.” Rehberg v. Paulk, 611 F.3d 828, 837 n.5 (11th Cir. 2010), cert. granted, 79
U.S.L.W. 3377, 79 U.S.L.W. 3532, 79 U.S.L.W. 3538 (U.S. Mar. 21, 20011) (No. 10-788,
10A341). “We review de novo the district court’s denial of a motion to dismiss on the basis of
absolute or qualified immunity.” Id.

                                                6
       “Qualified immunity shields government officials who perform

discretionary governmental functions from civil liability so long as their conduct

does not violate any ‘clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Rehberg v. Paulk, 611 F.3d 828, 838

(11th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738 (1982)), cert. granted, 79 U.S.L.W. 3377, 79 U.S.L.W. 3532, 79

U.S.L.W. 3538 (U.S. Mar. 21, 20011) (No. 10-788, 10A341).3

       “To evaluate claims of qualified immunity, the Court considers whether (1)

the plaintiff has alleged a violation of a constitutional right; and (2) whether the

right was ‘clearly established’ at the time of the defendant’s misconduct.”

Rehberg, 611 F.3d at 838-39. These questions are answered in whatever order is

most appropriate for the case. Pearson v. Callahan, 555 U.S. 223, __, 129 S. Ct.

808, 821 (2009).

       “In order to determine whether a right is clearly established, we look to the

precedent of the Supreme Court of the United States, this Court’s precedent, and

the pertinent state’s supreme court precedent, interpreting and applying the law in

similar circumstances.” Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009).



3
 “[O]nly qualified immunity, not absolute immunity, applies to conduct taken in an investigatory
capacity as opposed to a prosecutorial capacity.” Rehberg, 611 F.3d at 850.

                                               7
B.    Count VIII

      In Count VIII, Plaintiffs allege that Defendants Sheriff Hall and Deputy

Utsey initiated and carried out an investigation against them in retaliation for

Daniel Thompson’s comments at the town hall meeting. Such allegations do not

establish a constitutional violation. “The initiation of a criminal investigation in

and of itself does not implicate a federal constitutional right.” Rehberg, 611 F.3d

at 850 n.24. Therefore, “[n]o § 1983 liability can attach merely because the

government initiated a criminal investigation.” Id. As we stated in Rehberg, “The

Supreme Court has never defined retaliatory investigation, standing alone, as a

constitutional tort, and neither has this Court.” Id. at 850 (citation omitted).

      Alternatively, in Rehberg the conduct in issue occurred from October 2003

to February 2004. Id. at 835. In Rehberg we reversed the district court’s denial of

qualified immunity, concluding that even assuming that a retaliatory investigation

is a constitutional violation, the “right to be free from a retaliatory investigation is

not clearly established.” Id. at 850-51. Thus, Defendants Sheriff Hall and Deputy

Utsey are entitled to qualified immunity insofar as Plaintiffs have alleged they

carried out an investigation in 2005 in retaliation for Plaintiff Daniel Thompson’s

comments at the town hall meeting.

      We recognize that Plaintiffs argue that the allegations in this case involve

                                            8
not just retaliatory investigation, but a campaign of harassment and intimidation

against Plaintiffs to retaliate against them for Daniel Thompson’s comments at the

town meeting and to deter them from filing a civil suit.

      “To state a retaliation claim, . . . a plaintiff must establish first, that his

speech or act was constitutionally protected; second, that the defendant’s

retaliatory conduct adversely affected the protected speech; and third, that there is

a causal connection between the retaliatory actions and the adverse effect on

speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). As to the

second prong, “[a] plaintiff suffers adverse action if the defendant’s allegedly

retaliatory conduct would likely deter a person of ordinary firmness from the

exercise of First Amendment rights.” Id. at 1254. “Among many other acts of

intimidation” in Bennett, the plaintiffs alleged “[1] the defendants took down

license tag numbers of cars at a forum in support of the referendum, [2] surveilled

the plaintiffs’ homes and businesses, [3] set up roadblocks near their homes, [4]

stopped their cars without reason and issued false traffic citations, [5] accessed

government databases to obtain confidential information on the plaintiffs, [6]

attempted to obtain a warrant for their arrest on trumped-up environmental

charges, and [7] mailed flyers to 35,000 homes in Forsyth County calling the

plaintiffs the ‘real criminals,’ members of a ‘chain gang,’ and ‘the same type of

                                            9
criminals that terrorize Forsyth County.’” Id. at 1249. In Bennett, we noted that

“[t]he alleged retaliatory acts complained of . . . include a prolonged and organized

campaign of harassment by local police officers,” and that “the record is replete

with instances where the defendants followed, pulled over, cited, intimidated, or

otherwise harassed the plaintiffs.” Id. at 1254. Given these allegations, in Bennett

we concluded that the plaintiffs had sufficiently alleged a violation of their First

Amendment rights by virtue of the defendants’ retaliatory conduct. Id. at 1255-56.

       In contrast to Bennett, the only allegations of harassment or intimidation in

the Third Amended Complaint are: (1) Defendant Deputy Utsey allegedly

questioned an unnamed neighbor, who is not a party to this case, in an

intimidating manner, (2) unnamed Santa Rosa County Sheriff Deputies followed

Cathy Thompson and Barbara Knowling to and from work, (3) the number of

unidentified deputies in the Thompsons’ neighborhood increased, and such

deputies would drive by, stop, and point at homes in the neighborhood, and (4)

Defendant Sheriff Hall heard reports of witness intimidation by deputies but did

nothing to stop it.4 These allegations either implicate unnamed deputies or involve


4
 Plaintiffs also allege that unnamed members of the Santa Rosa Sheriff’s Office started a petition
to keep Daniel and Cathy Thompson from docking their boat at a neighbor’s house and told the
Thompsons’ neighbors that Daniel Thompson “tried to kill deputies.” Because Plaintiffs give no
names for these members of the Sheriff’s Office, we do not consider these allegations as against
Hall or Utsey.

                                                10
harassment that was directed at persons other than Plaintiffs. As such, they do not

establish an alleged constitutional violation by Defendants Hall and Utsey.

Moreover, it was not clearly established, at the time of the 2005 actions alleged in

the Third Amended Complaint, that any of the alleged actions of Hall or Utsey

would deter a person of ordinary firmness from engaging in protected speech. The

actions alleged here involve nowhere near the same level of harassment and

intimidation, for as prolonged a period of time, as was present in Bennett.

      For all of these reasons, we reverse the district court’s denial of Hall and

Utsey’s joint motion to dismiss Count VIII and remand with instructions that

Count VIII be dismissed against Defendants Hall and Utsey.

      REVERSED AND REMANDED.




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