PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-4824

_____________

LORENZO OLIVER

v.

DEBRA ROQUET, PSYD,

Appellant

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-13-cv-01881)

District Judge: Honorable Jose L. Linares 

_______________

Argued: April 14, 2016

Before: AMBRO, SMITHand KRAUSE, Circuit Judges

 

 Honorable D. Brooks Smith, United States Circuit Judge for 

the Third Circuit, assumed Chief Judge status on October 1, 

2016. 
2

(Filed: May 24, 2017)

_______________

David L. DaCosta, Esq.

Francesco Ferrantelli, Jr., Esq.

Gerard A. Hughes, Esq. (Argued)

Office of Attorney General of New Jersey

Richard J. Hughes Justice Complex

25 Market Street

Trenton, NJ 08625

Counsel for Appellant

Stephen A. Fogdall, Esq. (Argued)

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Amicus Counsel for Appellee

______________

OPINION OF THE COURT

______________

KRAUSE, Circuit Judge.

A state-employed medical professional charged with 

assessing the clinical progress of a civilly committed sexually 

violent predator considered this detainee’s First Amendment 

activities in connection with her recommendation that he not 

advance to the next phase of his treatment program. On 

interlocutory appeal, we are asked to determine whether the 
3

medical professional has qualified immunity from the resulting

First Amendment retaliation claim. Because the detainee has 

pleaded facts reflecting that the medical professional based her 

recommendation on the medically relevant collateral 

consequences of his protected activity, but has not sufficiently 

pleaded that the recommendation was based on the protected 

activity itself, the detainee has not alleged the necessary 

causation to state a prima facie case of retaliation. 

Accordingly, we will reverse and remand. 

I.

Appellant Debra Roquet is a psychologist at the Special 

Treatment Unit (STU) in Avenel, New Jersey, where Lorenzo 

Oliver, a sexually violent predator with a long history of 

convictions for both sexual and non-sexual offenses, has been

civilly committed to state custody for treatment pursuant to the 

Sexually Violent Predator Act, N.J. Stat. Ann. §§ 30:4-27.24

to .38. At the STU, treatment takes place in five phases, 

culminating in the detainee’s conditional discharge into the 

community on successful completion of the program. At least 

once a year, the Treatment Progress Review Committee 

(TPRC) interviews each detainee individually and considers a 

broad range of materials—including reports from and 

interviews with representatives of the detainee’s 

multidisciplinary treatment team—in order to formulate a 

recommendation to the Clinical Assessment Review 

Committee (CARP) about whether the patient should progress 

to the next step in the treatment program.

Roquet was one of two members of the TPRC and, on 

its behalf, wrote an eighteen-page report (the “TPRC Report”)

that described Oliver’s condition and recommended that he

remain in phase two of treatment. The TPRC Report
4

recognized that this was “not consistent” with the 

recommendation of Oliver’s treatment team, which had 

suggested that he advance to phase three of treatment, but 

concluded that Oliver “had not fully met the treatment goals

consistent with completion of Phase 2.” App. 31. CARP 

approved the TPRC’s recommendation and Oliver thus 

remained in phase two. 

The TPRC Report set forth Oliver’s statutorily defined 

mental abnormalities, noting that he suffers from, among other 

things, paraphilia and antisocial personality disorder. In 

addition to providing a detailed overview of Oliver’s sexual 

and non-sexual offenses, diagnostic history, and clinical 

treatment, the Report summarized the results of the TPRC’s 

hour-long interview with Oliver, including that “[i]n general, it 

appears that he denies, minimizes or justifies much of his 

documented offense history,” App. 38, and that “[h]e did not 

demonstrate remorse for his crimes or empathy for his 

victims,” App. 39. The Report noted that when asked to clarify 

his version of his offense history, Oliver was “confusing and 

ultimately evasive.” App. 41. At one point “[h]e 

acknowledged that he enjoyed the rapes,” App. 41, and at 

another point he stated that “[h]e ‘never’ had a rape fantasy” or 

did not remember if he had, App. 42. The Report also included

the following comment:

[T]he panel observed that Mr. Oliver earlier asserted 

that he did not regularly participate in one 

recommended treatment component (AA/NA) because 

he was too busy. He protested, stating that he is “fully 

participating in treatment” but he is “constantly writing 

for other people.” He has written “[t]housands of 

pages” in 30 days. This is because there are “2 
5

paralegals here for 500 people.” He said that he does 

this because he wants to help people.

App. 42. 

The Report concluded with a section entitled “Clinic 

Formulation and Treatment Recommendations,” which 

discussed the TPRC’s assessment of Oliver’s progress and 

made recommendations for the coming year. This section 

contained the following passages:

Note that Mr. Oliver is highly legalistic and 

knowledgeable, having received training to 

enable him to help other prisoners with legal 

matters while incarcerated. Mr. Oliver also has 

a history of pro se representation in the 

community. He reports that he gets satisfaction 

from helping others; however he has a history of 

abusing the use of his knowledge by charging 

fees for services, both in prison and in the STU.

. . .

Mr. Oliver continues to be legalistically focused, 

although he has managed to keep that out of his 

focus in group most of the time. He continued to 

dedicate a great deal of time and energy to his 

role as paralegal providing services to other 

residents and he also produces a newsletter. As 

he advances in treatment, Mr. Oliver may need 

to examine whether this focus deflects from a 

focus on treatment or whether it is countertherapeutic in any other way. It is of some 

concern that he reported problems with officers 
6

as result [sic] of these activities given that Mr. 

Oliver has an institutional history of conflicts 

with DOC when he was at Avenel that ultimately 

took precedence over participation in the 

treatment program. The TPRC wants to see that 

he is not headed in the same direction at the STU.

App. 46-47. 

Proceeding pro se, Oliver filed a complaint in the 

District of New Jersey asserting five causes of action, only one 

of which is relevant to this appeal: Oliver alleged—based on 

the TPRC Report—that Roquet violated his First Amendment 

right of free speech by refusing to recommend him for phase 

three treatment in retaliation for his participation in legal 

activities of two general types—those he conducted on his own 

behalf, and those he conducted on behalf of other STU 

residents.

Roquet moved to dismiss the complaint under Rule 

12(b)(6) of the Federal Rules of Civil Procedure but did not 

then assert a qualified immunity defense. The District Court 

denied the motion to dismiss as to Oliver’s First Amendment 

retaliation claim,

1

concluding that Oliver had “alleged 

 

1 The District Court, without prejudice, did grant 

Roquet’s motion to dismiss as to Oliver’s four remaining 

causes of action alleging violations of his constitutional right 

of access to courts (Counts One and Two), a violation of his 

rights under the New Jersey Patients’ Bill of Rights, N.J. Stat. 

Ann. § 30:4–24.2 (Count Four), and a violation of his free 

speech rights under the New Jersey Civil Rights Act, N.J. Stat. 
7

sufficient facts to allow the Court to draw the reasonable 

inference that his protected conduct was a motivating factor in 

[Roquet’s] decision not to promote him to phase three.” Oliver 

v. Roquet, No. 2:13-CV-1881, 2014 WL 1449634, at *4

(D.N.J. Apr. 14, 2014). Roquet did not appeal that decision.

With permission from the District Court, Oliver filed an 

amended complaint, which Roquet again moved to dismiss. 

This time, Roquet did assert a qualified immunity defense,

which the District Court declined to consider as Rule 12(g)(2) 

bars a party from “raising a defense or objection” in a 

successive motion under Rule 12 “that was available to the 

party but omitted from its earlier motion.” Oliver v. Roquet, 

No. 2:13-CV-1881, 2014 WL 4271628, at *2 (D.N.J. Aug. 28, 

2014). The District Court thus denied Roquet’s motion to 

dismiss, but explained that Roquet could raise a qualified 

immunity defense in a motion for judgment on the pleadings 

under Rule 12(c) or a motion for summary judgment pursuant 

to Rule 56(a). Id. at *3.

Roquet did not appeal those rulings but instead reasserted her qualified immunity defense in a motion for 

summary judgment. Oliver responded by requesting discovery 

concerning that defense, a request the District Court construed 

as a motion to defer the summary judgment motion and to 

allow discovery under Rule 56(d). Although the District Court 

acknowledged that “courts have a preference for resolving 

questions of qualified immunity before discovery is ordered,” 

it concluded that “in this particular case, without any 

discovery, this Pro Se Plaintiff would be foreclosed from being 

 

Ann. § 10:6–2 (Count Five). Oliver v. Roquet, No. 2:13-CV1881, 2014 WL 1449634, at *2-5 (D.N.J. Apr. 14, 2014).
8

able to show that there is a question of fact as to whether 

Defendant knowingly violated his right to free speech.” 

App. 3. The District Court therefore denied Roquet’s motion 

for summary judgment without prejudice, instructed the parties 

to meet and confer on discovery issues, and noted that Roquet 

would be permitted to re-file her motion after discovery. 

Roquet timely answered Oliver’s amended complaint and filed 

this appeal, and we appointed amicus curiae to assist Oliver in 

appellate proceedings.

2

We exercise plenary review over a District Court’s 

denial of summary judgment. Levy v. Sterling Holding Co., 

544 F.3d 493, 501 (3d Cir. 2008). Summary judgment “is 

appropriate only where there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of 

law.” Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008). We 

review a District Court’s decision to grant discovery under

Rule 56(d) for abuse of discretion. Murphy v. Millennium 

Radio Grp., 650 F.3d 295, 309-10 (3d Cir. 2011).

II.

We begin by addressing whether we have jurisdiction to 

hear this appeal. Because we conclude we do, we then consider 

whether the District Court properly ordered discovery instead 

 

2 We express our gratitude to Stephen A. Fogdall of 

Schnader Harrison Segal & Lewis LLP for accepting this 

matter pro bono and for the quality of his briefing and

argument in this case. Lawyers who act pro bono fulfill the 

highest service that members of the bar can offer to indigent 

parties and to the legal profession.
9

of granting summary judgment to Roquet based on her 

qualified immunity claim.

A.

Government officials are entitled to qualified immunity 

“insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person 

would have known.” Sharp v. Johnson, 669 F.3d 144, 159 (3d 

Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 

(2009)). When the defense of qualified immunity is raised and 

denied, a defendant is generally entitled to an immediate 

appeal under the collateral order doctrine so long as the denial 

turns on an issue of law. Walker v. Horn, 286 F.3d 705, 710 

(3d Cir. 2002). 

Here, the District Court said it was not denying 

qualified immunity, but rather was postponing its decision 

because, without discovery, Oliver would be “foreclosed from 

being able to show that there is a question of fact as to whether 

Defendant knowingly violated his right to free speech.” App.

3. In light of that ruling, Oliver and amicus argue we lack 

jurisdiction over Roquet’s appeal because: (1) Roquet did not 

timely raise qualified immunity; (2) Roquet’s defense of 

qualified immunity has not been denied; and (3) even if 

Roquet’s qualified immunity defense were denied, it was 

denied on a factual, not legal, basis. None of these arguments 

withstand scrutiny. 

First, although amicus makes much of the fact that 

Roquet did not assert qualified immunity in her first motion to 

dismiss, “there is no firm rule” as to when a defendant must

raise this affirmative defense, Sharp, 669 F.3d at 158, and the 

defense is not necessarily waived by a defendant who raises it 
10

later in the case, Eddy v. V.I. Water & Power Auth., 256 F.3d 

204, 210 (3d Cir. 2001). Indeed, it may be raised even after 

trial if the plaintiff suffers no prejudice. Sharp, 669 F.3d at 

158. Thus, Roquet’s failure to assert qualified immunity at an 

earlier stage does not divest us of jurisdiction over her 

immediate appeal.3

 

3

It is also true, of course, that once a party has filed a 

motion to dismiss under Rule 12 of the Federal Rules of Civil 

Procedure, that party, with limited exceptions, “must not make

another [such motion] raising a defense or objection that was 

available to the party but omitted from its earlier motion,” Fed. 

R. Civ. P. 12(g)(2), and we are troubled by what could be 

viewed as an end run around this prohibition in Appellant’s redesignation of her second motion to dismiss as a “motion for 

summary judgment.” We note, however, that a defense 

omitted from an earlier motion may nonetheless be raised in a 

motion for judgment on the pleadings, Fed. R. Civ. P. 12(h)(2); 

Leyse v. Bank of Am. Nat. Ass’n, 804 F.3d 316, 322 (3d Cir. 

2015), and that the District Court, in rejecting Roquet’s second 

motion to dismiss, specifically instructed that “[t]o the extent 

that Defendant wishes to raise a qualified immunity defense, 

she may do so in a motion for judgment on the pleadings 

pursuant to Rule 12(c) or a motion for summary judgment 

pursuant to Rule 56(a),” Oliver, 2014 WL 4271628, at *3. 

Given the absence of discovery, Roquet’s motion perhaps more 

properly should have been designated as the former and the 

District Court might have rejected it on technical grounds. But 

as the District Judge opted to deny it on the merits, in effect 

treating it as a motion for judgment on the pleadings and 

rejecting the legal defense it asserted in favor of discovery, we 
11

Second, qualified immunity may be “denied,” giving 

rise to appellate jurisdiction, not only where the denial is

express. In In re Montgomery County, this Court joined 

numerous other Courts of Appeals in holding that a district 

court’s “implicit denial of the Appellants’ immunity claims is 

sufficient to confer appellate jurisdiction.” Wright v. 

Montgomery Cty. (In re Montgomery Cty.), 215 F.3d 367, 370, 

374 (3d Cir. 2000); see also Brown v. Armenti, 247 F.3d 69, 72 

n.1 (3d Cir. 2001) (“Even though a district court does not 

explicitly address the immunity claims [in denying summary 

judgment], we nonetheless have jurisdiction to review the 

implied denial of those claims.”). And qualified immunity may 

be implicitly denied when a government official otherwise 

entitled to immunity is nonetheless subjected to “the burdens 

of such pretrial matters as discovery.” Behrens v. Pelletier,

516 U.S. 299, 308 (1996) (internal quotation marks omitted). 

That is, unless the plaintiff’s allegations state a claim of 

violation of clearly established law, “a defendant pleading 

qualified immunity is entitled to dismissal before the 

commencement of discovery,” Mitchell v. Forsyth, 472 U.S. 

511, 526 (1985), and a refusal to dismiss is a ruling “conclusive 

as to this right,” for which immediate appeal must be available,

Behrens, 516 U.S. at 308; see also Anderson v. Creighton, 483 

U.S. 635, 646 n.6 (1987) (concluding that if the actions alleged 

“are actions that a reasonable officer could have believed 

lawful . . . then [the officer] is entitled to dismissal prior to 

discovery”).

Third, Roquet’s qualified immunity defense was not

denied on a factual basis but rather on an appealable legal 

 

too will deem the defense timely raised and, as further 

discussed below, implicitly denied. 
12

ground. As explained above, the District Court granted 

discovery, reasoning that without it Oliver “would be 

foreclosed from being able to show that there is a question of 

fact as to whether [Roquet] knowingly violated his right to free 

speech.” App. 3. This ruling “may be separated into legal and 

factual components.” Eddy, 256 F.3d at 211. The factual 

component, apparent on the face of the order, pertains to the

question of whether Roquet’s violation of Oliver’s right to free 

speech was knowing. But the legal component, implicit in that 

ruling, is the District Court’s conclusion that Oliver had 

adequately pleaded such a violation and that the right violated 

was then “clearly established.” Sharp, 669 F.3d at 159 

(quoting Pearson, 555 U.S. at 231). If Oliver’s complaint did

not satisfy that legal component, then Roquet was entitled to 

qualified immunity as a matter of law, the District Court’s 

denial of summary judgment was erroneous, and its decision to 

grant discovery under Rule 56(d) was necessarily an abuse of 

discretion.

4

 

Having satisfied any concern as to our jurisdiction, we 

turn to the question of whether Roquet was entitled to qualified 

immunity. 

 

4

“[T]he fact that we have jurisdiction to review the 

Appellant[’s] immunity claims does not automatically mean 

that we should also decide them,” but resolution is preferable 

to remand where, as here, “the issues are purely legal and ripe 

for review,” such that there is “little benefit in requiring th[i]s[]

Appellant[] to press [her] claims anew in the District Court, 

and to risk yet further delay should that court’s ultimate 

decision lead to a subsequent appeal.” In re Montgomery Cty., 

215 F.3d at 374-75. 
13

B.

We start by considering whether Oliver has sufficiently 

alleged a violation of his First Amendment rights. This 

analysis requires us to “outline the elements a plaintiff must 

plead to a state a claim for relief.” Bistrian v. Levi, 696 F.3d 

352, 365 (3d Cir. 2012). We will then “peel away those 

allegations that are no more than conclusions and thus not 

entitled to the assumption of truth,” and assuming the veracity 

of the well-pled factual allegations that remain, ‘“determine 

whether they plausibly give rise to an entitlement to relief.”’ 

id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). 

1.

Mindful of the differences between the incarcerated and

the civilly confined,5 we are nonetheless persuaded that

prisoner retaliation actions are an appropriate starting point for 

our analysis of the elements of Oliver’s cause of action.

“Retaliating against a prisoner for the exercise of his 

constitutional rights is unconstitutional,” Bistrian, 696 F.3d at 

376, and this is of course no less true where the retaliation is 

directed against a civilly committed person, see Disability 

 

5 As the Supreme Court has explained, “[p]ersons who 

have been involuntarily committed are entitled to more 

considerate treatment and conditions of confinement than 

criminals whose conditions of confinement are designed to 

punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); 

see also Kansas v. Hendricks, 521 U.S. 346, 361-62 (1997) 

(holding that the commitment of a sexually violent predator 

under state statute did not implicate the objectives of criminal 

punishment).
14

Rights N.J., Inc. v. Comm’r, N.J. Dep’t of Human Servs., 796 

F.3d 293, 297 (3d Cir. 2015) (“[C]ommitted individuals are 

entitled to at least as much constitutional protection in this 

context as prisoners.”); cf. Youngberg v. Romeo, 457 U.S. 307, 

315-16 (1982) (“If it is cruel and unusual punishment to hold 

convicted criminals in unsafe conditions, it must be 

unconstitutional to confine the involuntarily committed—who 

may not be punished at all—in unsafe conditions.”).

To state a First Amendment retaliation claim, a prisoner 

plaintiff must allege (1) “that the conduct which led to the 

alleged retaliation was constitutionally protected”; (2) “that he 

suffered some ‘adverse action’ at the hands of the prison

officials”; and (3) “a causal link between the exercise of his 

constitutional rights and the adverse action taken against him,” 

or more specifically, “that his constitutionally protected 

conduct was ‘a substantial or motivating factor’ in the 

decision” to take that action. Rauser v. Horn, 241 F.3d 330, 

333 (3d Cir. 2001). Once the prisoner has made his prima facie

case, the burden shifts to the defendant to prove by a 

preponderance of the evidence that it “would have made the 

same decision absent the protected conduct for reasons 

reasonably related to a legitimate penological interest.” Id. at 

334.

In this case, the parties dispute what is required under 

the causation prong of the Rauser test and whether Oliver has 

alleged facts giving rise to the inference that his protected 

activity was a “substantial or motivating factor” in the decision 

not to advance him.6 The challenge here is that, although 

 

6 Although the parties agree that Oliver has sufficiently 

alleged his engagement in protected legal activity, they 

disagree and devote much of their briefs to the question of 
15

Oliver makes the conclusory allegation in his complaint that he 

suffered an adverse action based on his protected activity, the 

facts that Oliver alleges to support that causal link are drawn 

from the TPRC Report, and nothing in the Report—which we 

may consider in its entirety in this context as a “document 

integral to or explicitly relied upon in the complaint,” In re 

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d 

Cir. 1997) (emphasis omitted)—suggests that Oliver’s 

litigation activity itself was the basis of Roquet’s 

recommendation.7 Rather, on its face, the Report reflects that, 

to the extent Roquet considered Oliver’s litigation activity in 

recommending against his advancement, it was only to note

 

whether Roquet’s recommendation that Oliver remain in the 

second phase of treatment constituted an adverse action. 

Roquet argues that “[a] non-binding recommendation cannot 

possibly be an adverse action to which one is ‘subjected,’” 

Appellant’s Br. 15, while Oliver argues that CARP’s decision 

“relie[d] totally on the TPRC’s [R]eport,” Appellee’s Br. 13. 

Given our conclusion as to the causation prong in this case, we 

need not decide whether Roquet’s recommendation was

“sufficient to deter a person of ordinary firmness from 

exercising his First Amendment rights,” such that it would 

qualify as an adverse action. Brightwell v. Lehman, 637 F.3d 

187, 194 (3d Cir. 2011) (internal quotation marks omitted). 

7 While Oliver refers only to certain sections of the 

Report in his amended complaint, Roquet included the entire 

Report in the appendix to her motion, and we “may consider 

an undisputedly authentic document that a defendant attaches 

as an exhibit to a motion to dismiss if the plaintiff’s claims are 

based on the document,” Pension Benefit Guar. Corp. v. White 

Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
16

that certain problematic behaviors on which the 

recommendation was based—including Oliver being 

distracted from his treatment, his manipulative behavior, and 

his hostile relationship with STU staff—manifested 

themselves in Oliver’s litigation activities. 

Oliver does not argue that it was impermissible for 

Roquet to base her recommendation on those behaviors; 

instead, his argument seems to be that because the Report 

reflects that Roquet identified his litigation activity as 

associated with those behaviors, Oliver has sufficiently 

pleaded causation. In other words, Oliver contends that by 

alleging a medical professional considered protected activity at 

all, even if only as a symptom of or giving rise to medically 

relevant behaviors, a plaintiff can satisfy Rauser’s causation 

prong at the pleading stage. That cannot be, and is not, the law. 

To understand why more is needed in this context, we briefly 

review the Supreme Court’s and our jurisprudence related to 

this causation question. 

We derived the Rauser framework, in significant part,

from Mount Healthy Board of Education v. Doyle, 429 U.S. 

274 (1977), the Supreme Court’s decision on retaliation claims 

arising in the public employment context. The tests developed 

by the Court in Mount Healthy and our Court in Rauser to 

assess retaliation claims reflect the premise that protected 

activity is virtually never a permissible basis for state 

employees to take adverse action, much the way protected 

characteristics like race or sex are presumptively invalid bases 

for state action in the discrimination context. See, e.g.,

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); 

Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 

1999); see also Wilkie v. Robbins, 551 U.S. 537, 556 (2007) 

(drawing a parallel between the “methods for identifying the
17

presence of an illicit reason” established by the Supreme Court 

in the retaliation and discrimination contexts). Because it is 

generally impermissible for a state actor to hinge an adverse 

decision on such an activity or characteristic, any consideration 

of the activity or characteristic in the decision-making process 

leading to the adverse action is, in the normal course, sufficient 

to satisfy the causation element of a prima facie retaliation or 

discrimination case. See, e.g., Mt. Healthy, 429 U.S. at 282-

87; Pryor v. Nat’l Collegiate Athletic Ass’n., 288 F.3d 548, 

560-61 (3d Cir. 2002). 

This premise makes sense in most cases, as there is 

rarely a valid reason for a state actor to even consider a 

person’s protected activity or characteristics like race and 

gender when evaluating if an adverse action is appropriate. 

The Supreme Court has acknowledged, however, that there 

will be exceptions to this general rule, and that allegations of

mere consideration of protected activity will not always be 

enough to plead causation in a retaliation case. Instead, as the 

Court explained in Hartman v. Moore, the necessary “proof of 

a connection” between the protected activity and the adverse 

action will “depend on the circumstances.”8 547 U.S. 250, 263 

(2006). 

 

8

In that case, the Supreme Court adjusted the 

requirements of the causation prong of a prima facie retaliation 

claim to reflect the unique circumstances of a retaliatory 

prosecution claim against a federal agent, which the Court 

recognized presented an unusual problem because a plaintiff 

may only bring the claim against a non-prosecuting 

government agent, rather than the prosecutor himself, even 

though it is ultimately the prosecutor’s decision whether or not 

to bring criminal charges. Id. at 263. Although the Court
18

When evaluating what allegations will satisfy this 

requirement, we also must consider the pleading standards set 

forth in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 

555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

That is, a plaintiff’s allegations “must be enough to raise a right 

to relief above the speculative level,” Twombly, 550 U.S. at 

555, and must reflect “more than a sheer possibility that a 

defendant has acted unlawfully,” Iqbal, 556 U.S. at 678. A 

plaintiff’s “bare assertions . . . amount[ing to] nothing more 

than a ‘formulaic recitation of the elements’ of a constitutional 

[retaliation] claim,” will not suffice. Id at 681 (quoting 

Twombly, 550 U.S. at 555). 

With these standards in mind, it is clear that, in the 

context of a retaliation claim against a mental health

professional at a state institution, a prima facie showing of 

causation requires more than the allegation that the 

professional based a medical decision on symptomology that

happened to relate in some way to a patient’s protected activity. 

There must be particular facts alleged that allow the court to 

reasonably infer it is the protected activity itself, and not 

simply medically relevant behavior associated with that 

activity, that formed the basis of the defendant’s adverse 

action. This is so because a medical professional’s holistic 

 

acknowledged that the requirement it was adding, a showing 

of the absence of probable cause to prosecute, would “not 

necessarily [be] dispositive” in every case, id. at 265, it also 

observed that the “complexity” of the causation issue needed 

to be “addressed specifically in defining the elements of the 

tort,” id., and therefore concluded “it makes sense to require 

such a showing as an element of a plaintiff’s case . . . that [] 

must be pleaded and proven,” id. at 265-66. 
19

approach to diagnosing a patient’s mental health will 

sometimes require consideration of his otherwise protected 

speech and conduct to evaluate any adverse consequences they 

are having on his treatment. Framed in terms of the Rauser test

and the relevant pleading standards, an assertion by a mental 

health detainee that his treating psychologist retaliated against 

him, based only on the factual allegation that the psychologist 

considered the effect his First Amendment activity was having 

on his treatment, would not support the inference that 

retaliation was the “substantial or motivating factor” for the 

psychologist’s recommendation. 

Suppose, for example, that a state-employed 

psychologist ordered continued detention and treatment of a 

detainee with paranoid schizophrenia based, among other 

things, on her observation that the detainee’s obsessive filing

of complaints alleging conspiracy theories was symptomatic of 

continued paranoia and had consumed his time to the exclusion 

of therapeutic activities. We could hardly say the 

psychologist’s “consideration of” the detainee’s protected 

activity—to the extent the psychologist simply noted its 

association with the symptomology on which her medical 

decision was based—was sufficient alone to plead causation 

and to create an inference of retaliation. Indeed, to conclude 

otherwise would create a perverse incentive for psychologists 

to ignore medically relevant detainee behaviors simply because 

those behaviors coincidentally involve conduct protected by 

the First Amendment. As demonstrated by this example, the

mere allegation that a mental health professional considered a 

patient’s protected activity to be associated in some way with 

the medically relevant conduct on which the adverse action, on 

its face, was based will not raise the patient’s right to relief 

“above the speculative level.” Twombly, 550 U.S. at 555.
20

Our holding is also supported by the Supreme Court’s 

repeated admonitions that we owe deference to medical 

professionals in both the prison and civil commitment contexts. 

See Washington v. Harper, 494 U.S. 210, 232 (1990); Parham 

v. J. R., 442 U.S. 584, 607 (1979). Most notably, in Youngberg 

v. Romeo, 457 U.S. 307 (1982), because of the special expertise 

of medical professionals regarding those institutionally 

committed to their care—and the need to minimize 

“interference by the federal judiciary with the internal 

operations of [state] institutions”—the Supreme Court stressed 

judicial deference to their treatment decisions and expressed 

concerns about imposing upon them standards that would force 

them to make judgments “in the shadow of” legal liability. Id. 

at 322, 325. To determine whether intellectually disabled

individuals who have been involuntarily committed can 

recover damages against doctors and other experts responsible 

for their treatment, the Court ultimately held in that case that

medical professionals’ decisions are “presumptively valid” and 

“liability may be imposed only when the decision by the 

professional is such a substantial departure from accepted 

professional judgment, practice, or standards as to demonstrate 

that the person responsible actually did not base the decision 

on such a judgment.” Id. at 323. Requiring that a prima facie 

case of retaliation involve more than just the allegation that a 

psychologist took account of facially relevant medical 

behaviors—including those associated in some way with a

patient’s protected activity—is consistent with the

“presumptive validity” we accord to these professionals’ 

medical judgment. 

This requirement for pleading causation in the context 

of a mental health professional’s clinical decisions also aligns 

with New Jersey’s legitimate state interest in providing 
21

appropriate rehabilitation to sexually violent offenders. New 

Jersey’s statutory system is designed to balance the rights of 

the individual with “the purpose of ensuring that the person 

participates in necessary treatment and that the person does not 

represent a risk to public safety.” N.J. Stat. Ann. § 30:4-

27.32(c)(2). The same provision that charges the STU with 

“provid[ing] or arrang[ing] for custodial care” of sexually 

violent predators specifies that “the rights and rules of conduct 

applicable to a person subject to involuntary commitment as a 

sexually violent predator” are to be established by regulations 

that “specifically address the differing needs and specific 

characteristics of, and treatment protocols related to, sexually 

violent predators.” Id. § 30:4-27.34(a), (d). In short, the 

constitutional rights of those committed under the state statute 

are not absolute but are subject to treatment protocols designed 

to ensure fulfillment of the objectives of their commitment and 

rehabilitation. To hold that a prima facie case of retaliation 

could be established merely by alleging that a medical 

professional considered the effect a detainee’s protected 

activity was having on his treatment would motivate those 

responsible for administering this system to refrain from 

addressing behavior often pertinent to a detainee’s treatment

and would undercut New Jersey’s legitimate interest in 

rehabilitating its sexually violent offenders. 

For all of these reasons, we conclude that in order to 

satisfy the third element of a prima facie case under Rauser—

that the plaintiff’s protected activity was a “substantial or 

motivating factor” for the defendant’s adverse action—Oliver 

must allege that it is his protected activity itself, not just the 

medically relevant collateral consequences of that activity, that 

played a role in Roquet’s recommendation not to advance 
22

him.

9

 We now proceed to determine whether Oliver has met 

this burden.

2.

Applying these principles here, we conclude that Oliver 

has failed to state a retaliation claim. No facts on the face of 

Oliver’s complaint or the TPRC Report suggest that Oliver’s 

protected activity itself, rather than medically relevant 

collateral consequences of that activity, was the basis of 

Roquet’s recommendation. The Report expresses concern that 

Oliver’s litigation activity is a significant distraction from his 

treatment, as Oliver’s own comments reflect that he is so 

 

9 Some Courts of Appeals have arrived at a similar result 

at the summary judgment stage, holding that liability cannot be 

imposed where a medical professional considers a detainee’s 

protected expression for legitimate reasons concerning the 

implications of that expression for the detainee’s mental health. 

See, e.g., Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) 

(affirming a grant of summary judgment to a state mental 

health evaluator where the detainee plaintiff alleged the 

evaluator violated his First Amendment rights by basing his 

conclusion that the detainee was delusional and 

recommendation that detainee be taken into custody on 

political statements detainee made on an online social media 

website). For the reasons discussed above, however, we 

conclude that—at least in the context of mental health 

evaluations of the civilly committed, which is the only context 

we address today—whether a detainee’s allegations reflect 

consideration of his protected activity itself or only the 

collateral consequences of such activity is appropriately 

addressed in connection with causation at the pleading stage. 
23

consumed by his legal activities that he failed to participate in 

a recommended component of his treatment program. The 

Report further reflects that Oliver has manipulated other 

inmates and abused the power these activities vest in him by 

charging fees for legal services both during his prior 

incarceration and his current civil confinement, and that he has 

created hostility with officers at the program through his 

protected activity. Roquet elaborated that she found Oliver’s 

acknowledged conflicts with the STU staff particularly 

concerning, as he has a “history” of similar animosity and these 

conflicts “ultimately took precedence over [Oliver’s] 

participating in the treatment program” in the past. App. 47. 

Oliver has not alleged that any of these medical 

observations, which appear to be appropriate and reasonable 

on their face, are not true or are exaggerated. Instead, he 

simply asserts that Roquet’s description of him as “legalistic,” 

and her observation that he devotes a lot of his time to his 

litigation activities, “are clearly directed at [Oliver’s] legal 

activit[y]” itself. App. 17-18. This unsupported conclusory 

assertion based on statements taken largely out of context is 

not sufficient to plead causation. 

We recognize there may be cases where a medical 

report purporting to focus only on the collateral consequences 

of a detainee’s First Amendment activity could be sufficient to 

establish a prima facie case of retaliation plaintiff where the 

plaintiff is able to plead “consideration plus,”—i.e., where, in 

addition to consideration of the protected activity by way of its 

association with medically relevant conduct, there are specific 

factual allegations supporting an inference that the adverse 

action was based on the protected activity itself. For example, 

a prima facie case might be established if there were specific 
24

factual allegations suggesting that the collateral consequences 

were fabricated, that the defendant had communicated anger or 

frustration with the protected activity itself or had threatened 

to take action against the plaintiff, or that the collateral 

consequences relied upon were irrelevant to the medical 

judgment in question. 

Here, however, to the extent any such “plus” factors can 

be gleaned from Oliver’s complaint, they amount to no more 

than speculation that Roquet based her recommendation on 

anything other than the medically relevant conduct that 

pervades her report. For example, Oliver identifies specific 

instances of protected activity in which he engaged prior to 

Roquet’s recommendation not to advance him, alleging that

Roquet “deprived [him] of his [c]onstitutional [r]ights” 

because he wrote articles in a newsletter, filed a petition to 

remove class counsel in an unrelated civil rights case, and 

assisted other residents in their filing of legal grievances 

against the STU. App. 23. But these allegations plead the 

element of protected activity, not causation, and the conclusory 

statement that this activity is what deprived him of his 

constitutional rights is exactly the type of “bare assertion[]” 

that the Supreme Court has held amounts to “nothing more 

than a formulaic recitation of the elements of a constitutional 

[retaliation] claim.” Iqbal, 556 U.S. at 681 (quoting Twombly, 

550 U.S. at 555). 

Oliver also alleges that he has assisted other detainees 

in their suits against various other members of the TPRC, 

including another doctor who is a friend of Roquet’s. But 

where Roquet was not the subject of, or involved with, those 

complaints in any way, those allegations support nothing more 

than “a sheer possibility” that Roquet had a motive to retaliate 
25

against him, Iqbal, 556 U.S. at 678, and cannot stand in for a 

causal link that is missing. Absent supporting facts that make 

it reasonable to draw an inference of retaliation, these 

conclusory assertions of a cause-and-effect relationship 

between specific protected activities and a later adverse action 

are insufficient to plead causation. Twombly, 550 U.S. at 555; 

see also Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 

253 (3d Cir. 2017) (holding that allegations “sufficient to raise 

the inference that [plaintiff’s] engagement in a protected 

activity was the likely reason for the [defendant’s] adverse 

action” are necessary to state a prima facie claim of retaliation

under Title VII). 

Perhaps in an attempt to establish, by process of 

elimination, that only a retaliatory motive could account for 

Roquet’s recommendation, Oliver also alleges that he met all 

of the goals and expectations outlined in the STU Residents 

Handbook. But again, Oliver offers but a bare allegation,

which the TPRC Report that forms the basis for his complaint 

overwhelmingly contradicts. For example, among these goals 

and expectations is that the offender show “[s]ome 

acknowledgment of sexual offense history” and “[a]cceptance 

of at least some personal responsibility for sexual assaults,” 

App. 20, but, according to the Report, Oliver “denies, 

minimizes or justifies much of his documented offense 

history,” App. 38, “did not demonstrate remorse for his crimes 

or empathy for his victims,” App. 39, and was “confusing and 

ultimately evasive” about his offense history, App. 41.10 

 

10 Oliver also makes additional allegations for the first 

time in an affidavit attached to his appellate brief about an ex 

parte interaction he had with Roquet after her colleague had 

left the interview room. Whatever concerns we would
26

In short, Oliver has not sufficiently alleged any direct

“causal link” between Roquet’s recommendation and his First 

Amendment protected activities. Rauser, 241 F.3d at 333. 

Instead, the “causal link” Oliver alleges is between the 

recommendation and facially legitimate and uncontested 

medical observations that, by happenstance, result from those 

activities, and, absent allegations supporting a reasonable 

inference that Roquet based her recommendation on anything 

other than reasonable medical judgment, Oliver has not 

pleaded the causation required to state a prima facie claim of 

retaliation. 

C.

Even if Oliver had adequately stated a retaliation claim, 

he could not prevail because the right that he asserts was 

violated was not clearly established at the time Roquet wrote 

the TPRC Report. 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.’” Sharp, 

669 F.3d at 159 (quoting Saucier v. Katz, 533 U.S. 194, 202 

(2001)). This inquiry requires us to “define the right allegedly 

 

otherwise have with the introduction of this self-serving 

document on appeal, we do not recognize facts outside of the 

record and no such allegation appears in the complaint or any 

document before the District Court. While we would always 

look skeptically at self-serving facts introduced in the middle 

of the litigation and only in the plaintiff’s own affidavit, “[w]e 

do not consider material on appeal that is outside of the district 

court record.” Webb v. City of Phila., 562 F.3d 256, 261 n.4 

(3d Cir. 2009). 
27

violated at the appropriate level of specificity,” id., that is, ‘“in 

light of the specific context of the case, not as a broad general 

proposition,’” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 248

(3d Cir. 2016) (quoting Saucier, 533 U.S. at 201).

Here, Oliver alleges that Roquet violated his First 

Amendment rights merely by identifying ways in which his 

legal activities affected his treatment and considering those 

observations among others in making a medical 

recommendation. In the absence of facts supporting an 

improper motive, the right asserted by Oliver appears to be the 

right of a civilly committed detainee to be assessed for

treatment progress without consideration of any medical 

consequences of his legal activities. But “we have never 

indicated, let alone clearly established,” such a right. Sharp, 

669 F.3d at 160. And, for the reasons explained, medical

professionals cannot be prohibited from taking into account 

such activities to the extent those activities on their face bear

on the clinical assessments such professionals have been 

charged with rendering. Necessarily, then, a reasonable STU 

psychologist in Roquet’s position would not have understood

she was violating a constitutional right by basing her 

recommendation, at least in part, on the effects of Oliver’s legal 

activities on his medical progress. For this reason as well, 

Roquet is entitled to qualified immunity.

III.

For the foregoing reasons, we will reverse the District 

Court’s order granting Oliver discovery and remand the case 

for proceedings consistent with this opinion.