# Larson v. Carpenter

> District Court, D. Oregon · September 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10395253

## Case

- **Court:** District Court, D. Oregon
- **Decided:** September 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GORDON LARSON, Case No. 2:21-cv-01328-JR
Plaintiff, OPINION AND ORDER
v.
GRANT COUNTY DISTRICT
ATTORNEY JIM CARPENTER
and GRANT COUNTY DEPUTY
DISTRICT ATTORNEY
RICCOLA VOIGT,

Defendants.
_____________________________

RUSSO, Magistrate Judge:

Defendants Jim Carpenter and Riccola Voigt move to dismiss plaintiff Gordon Larson’s
amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). All parties have consented to allow a
Magistrate Judge enter final orders and judgment in this case in accordance with Fed. R. Civ. P.
73 and 28 U.S.C. § 636(c). For the reasons stated below, defendants’ motion is granted.
BACKGOUND
Plaintiff is a resident of Grant County, Oregon, and a retired Oregon State Police
Lieutenant. First Am. Compl. (“FAC”) ¶¶ 5, 10 (doc. 24). At all relevant times, Carpenter was the
elected District Attorney for Grant County and Voight was a Deputy District Attorney. Id. at ¶¶ 6-

7.
In 2019, plaintiff expressed concern to Carpenter about the veracity of Grant County
Sheriff Palmer. Specifically, plaintiff alleges that he was concerned that “Carpenter was not
informing criminal defense counsel and defendants of exculpatory evidence related to Sheriff
Palmer.” Id. at ¶ 12. According to plaintiff, he frequently reminded “Carpenter of his
responsibilities under Brady v. Maryland, 373 U.S. 83 (1963).” Id.
When it “became apparent that Defendant Carpenter was not going to inform criminal
defense counsel of Sherriff Palmer’s veracity issues,” plaintiff began recording his telephone
conversations with Carpenter. Id. at ¶ 13. In April 2020, after meeting in person with Carpenter to
further express his concerns about Palmer, plaintiff informed “Carpenter that [he] had recorded

some of their previous telephone conversations and had forwarded the conversations to local news
agencies.” Id. at ¶ 14. Carpenter subsequently “approached Under Sheriff Zach Mobley and
Deputy Savanah Wyllie” asserting the following, according to Wyllie’s notes:
a. The conversation occurred June 24, 2020 at 11:06am.
b. Defendant Carpenter reported that, “Gordon Larson is Black-mailing Jim to
Brady Glenn Palmer.”
c. “Gordon has secretly been recording Jim in meetings.”
d. “Gordon claimed to have already sent recordings to OPB.”

Id. at ¶ 15.
According to public records requests: (1) Mobley and Wyllie failed to: assign a case or
investigation number to Carpenter’s complaint, interview plaintiff, inform Palmer of plaintiff’s
allegations, apply for a search warrant, write a report, request a grand jury subpoena from the
District Attorney’s office, or review emails between plaintiff and Carpenter; (2) Grant County
Legal Assistant Jamie McKay prepared a grand jury subpoena at Carpenter’s direction to Oregon
Public Broadcasting requesting all recordings and documents submitted from plaintiff regarding

Palmer or Carpenter; and (3) Voigt did not review any documents before signing the subpoena. Id.
at ¶¶ 16-17, 24.
Based on these facts, plaintiff alleges the Grant County Sheriff’s Office “never investigated
Carpenter’s criminal complaint about plaintiff” even though “Carpenter falsely reported facts and
crimes . . . in the hopes they would investigate plaintiff.” Id. at ¶¶ 22, 25. Plaintiff further alleges
that the Grant County Grand Jury never heard evidence about “Carpenter’s criminal complaint
about plaintiff” and therefore the subpoena was not justified. Id. at ¶ 23.
On September 9, 2021, plaintiff initiated this case, alleging a claim under 42 U.S.C. § 1983
associated with the denial of his First Amendment rights, as well as a pendent state law claim for
intentional infliction of emotional distress (“IIED”). Defendants moved to dismiss both claims

and, on June 8, 2022, the Court granted defendants’ motion. In particular, the Court found that
plaintiff’s IIED claim “fail[ed] to allege facts showing the Sheriff’s Office undertook an
investigation or engaged in any harassing activity directed at plaintiff.” Larson v. Carpenter, 2022
WL 2066154, *3 (D. Or. June 8, 2022). Additionally, the Court found that, “given the dearth of
facts regarding how the alleged false statements were directed to plaintiff, the complaint fails to
sufficiently plead facts regarding intent.” Id. at *4. Concerning plaintiff’s First Amendment claim,
the Court explained:
What is not alleged in the complaint is when and how plaintiff learned of this
investigation and how it impacted his exercise of free speech. Moreover, the
complaint does not allege facts demonstrating how the alleged chilling activities
continue to transform a fear of indictment or other law enforcement investigation
into immediate danger of direct injury as a result of plaintiff’s speech or continued
engagement in such speech. In addition, because the complaint does not allege how
plaintiff learned of the investigation and its impact on him, it lacks a plausible
assertion showing that defendants acted with the intent to chill plaintiff’s speech.

Id. at *3. Accordingly, the Court found “the complaint does not plausibly allege a First Amendment
Claim” and therefore declined to “address defendants’ assertion of qualified immunity.” Id.
On June 9, 2022, plaintiff lodged his Amended Complaint, eliminating his IIED claim but
otherwise realleging his retaliation claim under the First Amendment. On June 14, 2022,
defendants filed the present motion to dismiss. Briefing was completed in regard to that motion on
July 7, 2022.
STANDARD
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must
dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must
allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). For the purposes for the motion to dismiss, the complaint is
liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters,
719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than
a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed
true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief,
the complaint “must contain sufficient allegations of underlying facts” to support its legal
conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
Plaintiff’s amended First Amendment claim is identical to his original pleadings except for
the addition of the following allegations:
(1) After receiving the unlawfully issued Grand Jury Subpoena, a reporter from
Oregon Public Broadcasting contacted plaintiff. The reporter informed plaintiff that
they received the subpoena, informed plaintiff that it appeared he was under
criminal investigation and asked plaintiff if he was in any trouble with the law
enforcement.

(2) There is sufficient information and belief to allege that defendants knew, and
intended, the recipient of the unlawful subpoena would contact plaintiff before
responding to the subpoena and inform plaintiff that he was the subject of a criminal
investigation. Defendants sent the subpoena, falsely reported a crime to the Grant
County Sheriff’s Office and, on their own, criminally investigated plaintiff in order
to chill his speech and intimidate plaintiff into abandoning his efforts to report
defendants’ failure to inform criminal defendant of Sheriff Palmer’s history of
untruthfulness.

(3) After learning of defendants’ fraudulent criminal investigation, plaintiff
abandoned all efforts to report defendants’ failure to inform criminal defendants of
Sheriff’s Palmer’s history of untruthfulness out of fear of indictment or further
criminal investigation. There is sufficient information and belief to allege that
defendants intended to silence plaintiff when they made the false report of criminal
activity, fraudulently initiated a criminal investigation, and issued a grand jury
subpoena to Oregon Public Broadcasting.

FAC ¶¶ 26-28 (doc. 24).
Defendants argue that dismissal is warranted because “plaintiff has alleged only one
additional fact” – i.e., that he was informed of the subpoena by a third-party – which “does not
allege any conduct on the[ir] part” or “address the reasons for the Court’s prior dismissal of his
Complaint.” Defs.’ Reply to Mot. Dismiss 1 (doc. 30). In addition, defendants contend that
“[p]laintiff’s claim is barred by the doctrine of qualified immunity because there is no clearly
established statutory or constitutional right to be free from a prosecutor issuing a subpoena to a
third-party [or] having a conversation with law enforcement about one’s conduct.” Defs.’ Mot.
Dismiss 4 (doc. 25).
To succeed under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the conduct
complained of deprived him or her of an existing federal constitutional or statutory right; and (2)
the conduct was committed by a state actor or a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988) (citations omitted). It is undisputed that defendants qualify as state
actors for the purposes of § 1983.
Qualified immunity shields government officials from damages liability “insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted).
To determine whether a government actor is entitled to qualified immunity, the court evaluates, in
no particular order, whether: (1) the alleged misconduct violated a right; and (2) that right was
clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
I. Whether Plaintiff has Alleged the Violation of a Constitutional Right
To state a retaliation claim under the First Amendment, the plaintiff must plead facts
showing: (1) he “was engaged in constitutionally protected activity”; (2) the defendant’s actions
caused the plaintiff “to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity”; and (3) the “defendant’s adverse action was substantially

motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.” Buckheit
v. Dennis, 713 F.Supp.2d 910, (N.D. Cal. 2010) (citing Mendocino Env’t Ctr. v. Mendocino Cnty.,
192 F.3d 1283, 1300-01 (9th Cir. 1999)). To ultimately “prevail on such a claim, a plaintiff must
establish a causal connection between the government defendant’s retaliatory animus and the
plaintiff’s subsequent injury.” Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019)
(citations and internal quotations omitted). Specifically, “a plaintiff must show that the defendant’s
retaliatory animus was a but-for cause, meaning that the adverse action against the plaintiff would
not have been taken absent the retaliatory motive.” Id.
It is undisputed plaintiff has met the first element. Concerning the second element, this
case presents a closer call. The potential for criminal charges to proceed before a grand jury is
likely a sufficiently serious consequence that would chill the average person from voicing criticism
of official conduct. Ultimately, however, a third-party, as opposed to defendants, informed plaintiff

of the subpoena and there are no well-plead facts reflecting that defendants intended to chill
plaintiff’s speech. In fact, there are no allegations evincing contact between defendants and
plaintiff, or that indicate defendants attempted, or otherwise desired, to make their conduct known
to plaintiff. As a result, the precedent plaintiff relies on – i.e., White v. Lee, 227 F.3d 1214 (9th Cir.
2000) – is distinguishable.
Further, “a complainant who alleges that the exercise of his First Amendment rights is
being chilled by [an overly broad] governmental investigative and data-gathering activity” still
“must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the
result of that action.” Laird v. Tatum, 408 U.S. 1, 10-13 (1972). Plaintiff’s new allegations fall
short of this standard. Although plaintiff now details how he learned of Carpenter’s subpoena and

its negative impact on his speech, he does not provide sufficient facts to plausibly suggest that the
alleged chilling activities continued in a manner that would reasonably transform his fear of
indictment or other law enforcement activities into an immediate danger of direct injury.
Also problematic to plaintiff’s claim is the Supreme Court’s admonition that an allegation
is not plausible where there is an “obvious alternative explanation” for the alleged misconduct.
Iqbal, 556 U.S. at 682 (citation and internal quotations omitted). Here, it is not entirely clear that
defendants’ motives were to punish plaintiff for exercising his First Amendment rights. One aspect
of a prosecutor’s job is to report potentially unlawful conduct to law enforcement. While Carpenter
may have improperly used the word “blackmail,” he nonetheless accurately reported to Mobley
and Wyllie that plaintiff “ha[d] secretly been recording” Carpenter and “claimed to have already
sent recordings to OPB.” FAC ¶ 15 (doc. 24). That is, plaintiff expressly alleges that he recorded
private telephone conversations with Carpenter (presumably without his consent) and then
submitted those recordings to local news agencies when Carpenter refused to capitulate to his

requests concerning the correction of Palmer’s allegedly wrongful conduct. Id. at ¶¶ 11-14. It is
equally plausible that defendants’ efforts to subpoena Oregon Public Broadcasting were motivated
by plaintiff’s unpermitted recording activities, as opposed to plaintiff’s speech surrounding
Palmer’s conduct.
II. Whether the Right Was Clearly Established
A right is clearly established if its contours are “sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739
(2002) (citation and internal quotations omitted). The dispositive inquiry is whether the state actor
had “‘fair warning’ that his conduct deprived his victim of a constitutional right.” Id. at 740
(citation omitted); see also Mullenix v. Luna, 577 U.S. 7, 11-12 (2015) (“[w]e do not require a case

directly on point, but existing precedent must have placed the statutory or constitutional question
beyond debate”).
Even assuming plaintiff adequately alleged a First Amendment violation, defendants
would be entitled to qualified immunity.1 Significantly, plaintiff does not allege he was criminally

1 Generally, qualified immunity, rather than absolute immunity, applies when prosecutors
“perform administrative functions, or investigative functions normally performed by a detective
or police officer.” Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005) (citation and internal
quotations omitted). Although “the Supreme Court has resisted any attempt to draw a bright-line”
between advocacy or police-type investigative work, prosecutors have been held absolutely
immune for “maliciously initiat[ing] a prosecution, us[ing] perjured testimony at trial, or
suppress[ing] material evidence at trial.” Id. at 637 (citations omitted). Conversely, absolute
immunity is not available “to prosecutors who had fabricated evidence during the early stage of
the investigation when police officers and assistant prosecutors were performing essentially the
charged or prosecuted, or that the information he furnished to Oregon Public Broadcasting was
privileged or confidential. He also does not allege that Voigt’s subpoena resulted in the disclosure
of any records, a prolonged criminal investigation, or any accusations of law-breaking, threats,
improper demands, or admonishments to cease pursuing Palmer’s alleged wrongdoing.

In other words, the only facts plaintiff identifies in support of his claim are that Carpenter
provided putatively false information to the Grant County’s Sherriff’s Office (in that he used the
word “blackmail”), which they neglected to act upon, and the issuance of a third-party subpoena
without a sufficient investigation. FAC ¶ 15-17, 22-25 (doc. 24); see also Pl.’s Resp. to Mot.
Dismiss 3 (doc. 27) (“Voigt signed and issued the subpoena with reviewing any materials . . .
There was never an open investigation by either the Grant County Sheriff’s Office or Grant County
District Attorney to justify the issuance of Defendant Voigt’s grand jury subpoenas”).
Critically, plaintiff has not cited to, and the Court is not aware of, any authority that would
put county prosecutors on notice that conferring with law enforcement or attempting to subpoena
private recordings provided to a third-party in the manner that occurred here was unconstitutional.

Plaintiff attempts to circumvent this shortcoming by characterizing the underlying issue as the
right “not to be subjected to criminal charges on the basis of false evidence that was deliberately

same investigatory functions” or “for providing legal advice to police that probable cause exists to
arrest a suspect.” Id. (citations omitted). Thus, while no party addresses this issue, the Court notes
that prosecutorial immunity would likely attach to defendants’ actions to the extent they are not
otherwise protected by qualified immunity. Cf. Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir.
2003) (“[a] prosecutor is absolutely immune from liability for failure to investigate the accusations
against a defendant before filing charges”) (citation omitted); Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993) (prosecutor’s evaluation of the evidence pre-indictment is entitled to absolute
immunity); Milstein v. Cooley, 257 F.3d 1004, 1012 (9th Cir. 2001) (utilizing a Grand Jury to
initiate prosecution is protected by absolute immunity); see also Sanders v. City & Cnty. of S.F.,
226 Fed.Appx. 687, 690 (9th Cir. 2007) (prosecutor’s “decision to convene a grand jury” is
intimately associated with the judicial phase of the criminal process, “even if done while lacking
probable cause”) (collecting cases).
fabricated by the government.” Pl.’s Resp. to Mot. Dismiss 10 (doc. 27) (quoting Devereaux v.
Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001)).
However, even under the line of cases recognizing this clearly established due process
right, plaintiff cannot evade qualified immunity. Indeed, as noted above, plaintiff does not allege

he was subjected to criminal charges or that defendants fabricated evidence. As such, plaintiff has
not alleged sufficient facts to demonstrate that defendants “continued their investigation of
[plaintiff] despite the fact that they knew or should have known that he was innocent.” Devereaux,
263 F.3d at 1076. In sum, the Court cannot find that it would have been clear to a government
actor confronting an analogous situation in 2020 that his or her actions were “plainly incompetent
or [a knowing violation of] the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
CONCLUSION
For the reasons stated herein, defendants’ Motion to Dismiss (doc. 25) is granted.
IT IS SO ORDERED.
DATED this 9th day of September, 2022.

________/_s_/ _J_o_li_e_ A_._ R__u_s_so________
Jolie A. Russo
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395253. Public record. Not legal advice.