United States Court of Appeals,

Eleventh Circuit.

No. 94-9222.

Louise SUISSA and Todd Levent, Plaintiffs-Appellees,

v.

FULTON COUNTY, GEORGIA, Fulton County Marshal's Department,

Warren H. Shaw, individually and in his official capacity as

Marshal of Fulton County, Defendants,

Tom Hubbard, individually and in his official capacity as Captain

in the Fulton County Marshal's Department, Defendant-Appellant,

John Boddie, individually and in his official capacity as Major

in the Fulton County Marshal's Department, Howard Billingslea,

individually and in his official capacity as Sergeant in the Fulton

County Marshal's Department, Deleon Ray, individually and in his

official capacity as Captain in the Fulton County Marshal's

Department, Defendants.

Feb. 6, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:91-CV-3036-RHH), Robert H. Hall, Judge.

Before TJOFLAT, Chief Circuit Judge, CARNES, Circuit Judge, and

FAY, Senior Circuit Judge.

PER CURIAM:

This is an appeal from the district court's denial of

qualified immunity to Captain Tom Hubbard of the Fulton County,

Georgia, Marshal's Department, on a 42 U.S.C. § 1983 claim

involving Hubbard's alleged attempt to influence a departmental

grievance report and an EEOC affidavit prepared by the plaintiff,

Todd Levent. In Lassiter v. Alabama A & M University, 28 F.3d 1146

(11th Cir.1994), we stated:

The most common error we encounter [in qualified immunity

cases], as a reviewing court, occurs on this point: courts

must not permit plaintiffs to discharge their burden [of

proving the violation of a clearly established right] by

referring to general rules and to the violation of abstract

"rights."
Id. at 1150. Because the district court committed that "most

common error" in this case, we reverse its denial of Hubbard's

qualified immunity summary judgment motion.

I. FACTS

Todd Levent and Louise Suissa are deputy marshals with the

Fulton County, Georgia, Marshal's Department. Both Levent and

Suissa are Jewish. On September 7, 1990, Suissa filed an internal

grievance charging that she and Levent had been discriminated

against because of their race. The discrimination allegedly took

the form of heavier work assignments, substandard equipment

assignments, and disparaging remarks about Jews and Judaism.

On September 11, 1990, Chief Deputy Mike Rary asked Levent to

prepare a report of his observations concerning the incidents

discussed in Suissa's grievance. Later that same day, Hubbard

allegedly asked Levent to step into a nearby stairwell and

attempted, by threatening Levent, to influence how he would write

the report. Levent did not heed Hubbard's alleged threats. On

September 12, 1990, Levent submitted a report to Chief Rary

thoroughly and truthfully detailing his knowledge regarding the

disparate treatment and harassment alleged in Suissa's grievance.

On October 18, 1990, Suissa filed a charge of discrimination

with the EEOC. On August 19, 1991, approximately eleven months

after his alleged conversation with Hubbard in the stairwell,

Levent submitted an affidavit to the EEOC in support of Suissa's

EEOC charge. Levent's affidavit largely reflected the contents of

his earlier internal report to the Marshal's Department.

 On December 6, 1991, Levent and Suissa filed a joint
 1

The district court did not rule on whether the defendants

were entitled to qualified immunity on the plaintiffs'

retaliation claim. Instead, the district court denied summary

judgment on this claim on the merits, holding that there was a

genuine issue of material fact as to whether the defendants

retaliated against the plaintiffs for their grievance and EEOC

reports. As we have said before:

The district court's order declining to rule on the

qualified immunity issue pending trial effectively

denies defendants the right not to stand trial. 

Because the "reserved ruling" is not materially

different from an outright denial of a summary judgment

motion, an immediate appeal on the qualified immunity

issue is permissible.

Collins v. School Bd. of Dade County, Fla., 981 F.2d 1203,

1205 (11th Cir.1993). Although the defendants could have

appealed the effective denial of their qualified immunity

summary judgment motion on the retaliation claim, they have

not done so. Therefore, we do not reach the question of

complaint in the United States District Court for the Northern

District of Georgia against Fulton County, Georgia, the Fulton

County Marshal's Department, and various employees of the Marshal's

Department in their individual and official capacities, including

Hubbard. In their complaint, Levent and Suissa alleged violations

of 42 U.S.C. §§ 1981 and 1983, violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, and a state claim for

intentional infliction of emotional distress. The defendants moved

for summary judgment on various grounds, including on the basis of

qualified immunity as to those claims asserted against the

defendants in their individual capacities. The district court

granted in part and denied in part the defendants' motion for

summary judgment. The only issue on appeal involves the district

court's denial of qualified immunity to Hubbard for his

unsuccessful alleged attempt to influence Levent's departmental

report and EEOC affidavit.1 We have jurisdiction to hear an
whether the defendants are entitled to qualified immunity as

to the retaliation claim. 

interlocutory appeal from a district court's denial of summary

judgment based on qualified immunity. See Mitchell v. Forsyth, 472

U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). "The

denial of qualified immunity is a question of law to be reviewed de

novo." Swint v. City of Wadley, Ala., 51 F.3d 988, 994 (11th

Cir.1995).

II. DISCUSSION

 "Qualified immunity protects government officials performing

discretionary functions from civil trials (and the other burdens of

litigation, including discovery) and from liability if their

conduct violates no "clearly established statutory or

constitutional rights of which a reasonable person would have

known.' " Lassiter, 28 F.3d at 1149 (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

"Although the cases sometimes refer to the doctrine of qualified

"good faith' immunity, the test is one of objective legal

reasonableness, without regard to whether the government official

involved acted with subjective good faith." Swint, 51 F.3d at 995.

"[W]e look to whether a reasonable official could have believed his

or her conduct to be lawful in light of clearly established law and

the information possessed by the official at the time the conduct

occurred." Id. (alteration in original) (citation and quotation

marks omitted). "Thus, qualified immunity protects "all but the

plainly incompetent or those who knowingly violate the law.' " Id.

(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096,
89 L.Ed.2d 271 (1986)).

 When a defendant government official raises the defense of

qualified immunity, first he must prove that "he was acting within

the scope of his discretionary authority when the allegedly

wrongful acts occurred." Sammons v. Taylor, 967 F.2d 1533, 1539

(11th Cir.1992). Levent concedes that Hubbard was acting within

the scope of his discretionary authority. Because that component

of qualified immunity is established, "the burden shifts to the

plaintiff to demonstrate that the defendant "violated clearly

established constitutional law.' " Id. (quoting Zeigler v.

Jackson, 716 F.2d 847, 848 (11th Cir.1983)).

 "If case law, in factual terms, has not staked out a bright

line, qualified immunity almost always protects the defendant. The

line is not to be found in abstractions—to act reasonably, to act

with probable cause, and so forth—but in studying how these

abstractions have been applied in concrete circumstances."

Lassiter, 28 F.3d at 1150 (citations and quotation marks omitted).

When considering whether the law applicable to certain facts

is clearly established, the facts of cases relied upon as

precedent are important. The facts need not be the same as

the facts of the immediate case. But they do need to be

materially similar. Public officials are not obligated to be

creative or imaginative in drawing analogies from previously

decided cases.

Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1575

(11th Cir.1992) (Edmondson, J., dissenting), approved en banc, 998

F.2d 923 (11th Cir.1993). "For qualified immunity to be

surrendered, pre-existing law must dictate, that is, truly compel

(not just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable government agent
 2

See supra note 1. 

that what the defendant is doing violates federal law in the

circumstances." Lassiter, 28 F.3d at 1150. We will address the

attempt to influence the grievance report and the attempt to

influence the EEOC affidavit separately.

A. Attempt to Influence the Departmental Report

 Levent has not offered, nor have we been able to find, any

case wherein an unsuccessful attempt, through speech, to influence

another's protected speech has been held to violate the First

Amendment. The only cases Levent offers in support of his argument

that Hubbard violated a clearly established First Amendment right

are cases involving retaliation against protected speech. See,

e.g., Pickering v. Board of Educ. Township High Sch. Dist. 205,

Will County, Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811

(1968); Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989),

reh'g denied, 894 F.2d 414 (11th Cir.1990). Although Levent has

claimed that the defendants retaliated against him for submitting

his departmental report and his EEOC affidavit, that claim is not

before us on this appeal.2

 Our focus must, therefore, be a narrow

one: whether the law was clearly established at the time of

Hubbard's alleged actions that an unsuccessful attempt to influence

speech violates the First Amendment. The facts of the speech

retaliation cases involve retaliation after speech occurs, which is

not "materially similar" to unsuccessful attempts to prevent or

influence protected speech. Both situations involve speech and the

First Amendment, but that is far too general a level of abstraction

for qualified immunity purposes. See Lassiter, 28 F.3d at 1150.
Stated somewhat differently, the speech retaliation decisions do

not "dictate, that is truly compel," id., the conclusion that an

unsuccessful attempt to prevent protected speech violates the First

Amendment. Therefore, the district court should have granted

Hubbard's motion for summary judgment on qualified immunity

grounds.

B. Attempt to Influence the EEOC Affidavit

 The same is true of the claim involving Hubbard's alleged

attempt to influence Levent's EEOC affidavit. The district court's

order does not make clear whether it found the evidence sufficient

for a jury to find that Hubbard knew or contemplated that Levent

might be filing an EEOC affidavit, as Levent did eleven months

after Hubbard spoke to him in the stairwell. However, even

assuming that the district court did find the evidence sufficient

for a jury question on that issue, see Johnson v. Jones, --- U.S.

----, ----, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995), it

nonetheless should have granted Hubbard's motion for summary

judgment on qualified immunity grounds. Just as no decision

clearly establishes that the First Amendment is violated by an

unsuccessful attempt to influence protected speech in general, none

clearly establishes that it is violated by an unsuccessful attempt

to influence an EEOC affidavit in particular.

III.

We REVERSE the district court's denial of Hubbard's qualified

immunity summary judgement motion on the claim for attempt to

influence Levent's grievance report and EEOC affidavit, and REMAND

for further proceedings consistent with this opinion.