Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)

Citation: Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)
Parent Document: Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)
Jurisdiction: United States (federal)
Effective Date: 2023-09-29
Original Source: https://www.courtlistener.com/opinion/9429207/greg-moore-v-sean-garnand/ ↗

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v. Paulk, 611 F.3d 828, 851 (11th Cir. 2010) (“[The] right to
be free from a retaliatory investigation is not clearly
established.    The Supreme Court has never defined
retaliatory investigation, standing alone, as a constitutional
tort . . . .”).
     Plaintiffs rely on two Ninth Circuit cases, but neither
held that a retaliatory investigation by itself was
unconstitutional. In Bruce v. Ylst, 351 F.3d 1283 (9th Cir.
2003), plaintiff “[a]llege[d] that prison officials violated his
First Amendment right to file prison grievances when they
validated him as a [gang] member in retaliation for his filing
of several grievances.” Id. at 1288. Bruce is inapt because
the alleged retaliatory action was the validation of the
plaintiff as a gang member, not any investigations conducted
by the prison officials. See id. White v. Lee, 227 F.3d 1214
(9th Cir. 2000), did involve a retaliatory investigation. Id. at
1226. But in White, the government’s investigation was
materially different than the investigation here. The officials
in White questioned plaintiffs under threat of subpoena,
directed them to produce documents, told plaintiffs and
reported to a newspaper that plaintiffs had violated the Fair
Housing Act, and “advised [plaintiffs] to accept a
‘conciliation proposal’ that required them to cease all
litigation and the distribution of ‘discriminatory’ newsletters
and flyers.” Id. at 1220. We held that, considering the
entirety of the officials’ acts, they had violated plaintiffs’
First Amendment rights. Id. at 1238 (“The scope and
manner of the investigation violated the plaintiffs’ First
Amendment rights.” (emphasis added)).
   Defendants’ actions (even as Plaintiffs allege them and
even disregarding the uncontested facts as to the arsons
18                       MOORE V. GARNAND

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