PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 14

- 4824

_____________

LORENZO OLIVER

v.

DEBRA ROQUET, PSYD

,

Appella nt

_____________

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. Fogdal l, 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 c ommitted sexual ly violent predator considered t his 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 the3 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 recom mendation was based on the protected activity itself, t he 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 sexual ly 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
Sexual ly 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 t he program

. At least

o nce 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) a bout 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 a n eighteen

- page report (the “TPRC Report”)

that described Oliver’s c ondition and recommend ed that he
remain in phase two of treatment

. The TPRC R eport4 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 R eport 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, di agnostic history, and clinical treatment, the R eport 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 ver si on of his offense history, Olive r was “c onfusing and ultimately evasive. ” App. 41

. At one point “[h]e

ac knowledged 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 R eport also included the following comment :

[T] he panel observed that Mr. Oliver earlier asserted that he did not regularl y 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 “25 paralegals here for 500 people.” He said that he does this because he wants to help people.

App. 42.

T he R eport concluded with a section en titled “Clinic
Formulation and Treatment Recommendat ions,” which discussed the TPRC’s assessment of Oliver’s progress and
made recommendat ions for the coming year. This section
contain ed 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 satisfactio n 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 ex amine whether this focus deflects from a
focus on treatment or whether it is counter

therapeutic in any other way. It is of some concern that he reported problems with officers6 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.

P roceeding pro se, Oliver filed a com plaint in the District of New Jersey asserting five causes of action, only one
of which is relevan t to this appeal: Oliver alleged

— based on the TPRC Report

— that Roque t 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) o f the Federal Rules of Civil Procedure but did not
then assert a qualified immunity defense

. T he 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 remai ning
causes of action alle ging violation s of his constitutional right of access to courts (Counts One and Two), a violation of his rights under the New Jersey Pa tients’ Bill of Rights, N.J. Stat.
Ann. § 30:4

– 24.2 (Count Four), and a violation of his free speech rights under the New Je rsey 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 promo te him to p hase three.” Oliver v. Roquet , No. 2:13

- CV

- 1881 , 2014 WL 1449634, at *4 (D.N.J. A pr. 14, 2014). Roquet d id 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 j udgment pursuant

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

.
Roquet did not appeal those ruling s but instead re

asserted her qualified immunity defense in a motion for

summar y 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 t he District Court acknowledged that “courts have a preference for resolving questions of qualified immunity be fore discovery is ordered,”

it conc luded 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

- CV

1881 , 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 answer ed Oliver’s amended complaint and filed this appeal, and w e appointed amicus curiae to assist Oliver in appellate proceedings

. 2

We exercise plenary review over a District Cou rt’s denial of summary judgment. Levy v. Sterling Holding Co.,
54 4 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 Distr ict Court’s decis ion to grant discovery under Rule 56(d) for abuse of discretion. Murphy v. Millennium Radio Grp., 650 F.3d 295, 309

- 10 (3d C ir. 2011).

II.

We begin by addressing whether we have jurisdiction to hear this appeal. B ecause we conclude we do, we then consider
whether the District Court properly ordered discovery instead

2 We express our gratitude to St ephen A. Fogdall of Schnader Harrison Segal & Lewis LLP for accepting this

matter pro bono and for the quality of his brief ing 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 t heir conduct does not violate clearly established statutory or constitutional rights of which a reaso nable 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 unde r 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 viola ted 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 the se arguments withstand scrutiny.

First, although a micus make s much of the fact t hat 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 it10 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 p laintiff suffers no prejudice. Sharp, 669 F.3d at
158. Thus, Roquet’s failure to assert qualified immunity at an

ear lier stage does not divest us of jurisdiction over her immediate appeal. 3

3 I t is also true, of co urse , 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 w e are troubled by what could be
viewed as an end run aro und this prohibition in Appellant’s re

designation of her second mo tion to dismiss as a “m otion for

s ummary j udgment

. ” 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 31 6, 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 j udgment 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 Cou rt 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 , we11 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. Fo rsyth , 472 U.S

. 511, 526 (1985), and a refusal to dismiss is a ruling “ conclusive as to this right

, ” for which immedi ate appeal must be available,
Behrens

, 516 U.S. at 308; s ee 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 a ppealable legal

too will deem the defense timely raised and, as further discussed below, implicitly denied.12 ground. As explained above , t he 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 vi olated his right to free

sp eech. ” 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 qualifie d 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

H aving 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 jurisd iction 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 “l ittle 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

d ecis ion 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. T his analysis requires us to “ outline the elements a plaintiff must plead to a state a c laim 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 t he assumption of truth,” and assuming the veracity
of the well

- pled factual allegations that remain, ‘ “determine whether they plausibly give r ise to a n entitlement to relief. ” ’

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

1.

Mindful of the differences between the i ncarcerated and
the civilly confined, 5 we are nonetheless persuaded that prisoner retaliation actions a re a n 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 t he 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 protect ed
conduct was ‘ a substantial or motivating factor ’ in the
decision ” to take that action. Rauser v. Horn , 24 1 F.3d 330, 333 (3d Cir. 2001)

. O nce 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, t he 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 t he 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 of15 Oliver makes the conclusory alleg ation in his complaint that he suffered an adverse action based on his protected activity, t he facts that Oliver alleges to support that causal link are drawn from the TPRC Report

, and nothing in the R eport

— 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

liti gation activity itself was the basis of Roquet’s
recommendation. 7 Rather, o n its face, the R eport reflects that

, to the extent Roquet considered Oliver’s litigation activity in recommending against his advancement

, it was only to note

whether Roquet’s recommendatio n 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 ‘subject ed ,’” 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, w e need not decide whether Roquet’s recommendation was “sufficient to deter a person of ordinary firmness from exercising h is 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 Ben efit 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;
i nstead , his argument seems to be that because the Report
reflects that Roquet identified his litigation activity as
associated with those behaviors , Oliver has sufficiently plead ed causation . In other words, Oliver contends that by alleging a medical profession al considered protected activity at all, even if only as a symptom of or giving rise to medically
relevant behavior s , a plaintiff can satisfy Rauser ’s cau sation 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 , i n significant part,
from Mount Healthy B oar d of Ed ucation v. Doyle , 429 U.S.
274 (1977), the Supreme Court’s decision on retaliation claims arising in the public employment context . The test s developed by the Court in Mount Healthy and o ur Court in Rauser to assess retaliation claims reflect the premise that protected activity is v irtually 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 a ction 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 the17 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
discriminati on case. See

, e.g. , Mt. Healthy

, 429 U.S. at 282

- 8 7 ; 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 reas on 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 wil l not always be enough to plead causation in a retaliation case. Instead, as the
Co urt 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 prosecutio n claim against a federal agent, which the Court recognized present ed an unusual problem because a plaintiff may only bring the claim against a non

- prosecuting

governmen t agent, rat her 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 Court18 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 p laintiff’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 u nlawfully

, ” Iqbal , 556 U.S. at 678

. A

p laintiff’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)

.

W ith 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 require s more than the allegation that the professional based a medical de cision on symptomology that happen ed 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 a ctivity itself, and not simply medically relevant behavior associated with that activity, that form ed the basis of the defendant’s adverse

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

ac knowledged 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 otherwi se 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 , a n 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
retalia tion 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 complaint s alleging conspiracy theories wa s symptomatic of continued paranoia and ha d consumed his time to the exclus ion of therapeutic activities. We c ould hardly say the psychologist’s “consideration of” the detainee’s protected activity

— to the exte nt 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 incenti ve 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 Suprem e Court’s repeated admonitions that we owe deference to medical professionals in both the priso n 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 j udiciary 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” l egal liability. Id. at 322, 325 . To d etermine whether intellectually disabled individuals who have been involuntarily committed can
recover dama ges against doctors and other experts responsible
for their treatment , the Court ultimately held in that case that
medical professional s ’ 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 “pres umptive validity” we accord to t hese professionals’ medical judgment.

This requirement for pleading causation in the cont ext of a mental healt h professional’s clinical decisions also aligns with New Jersey’s legitimate state interest in providing21 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

re present 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 custo dial 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 treatmen t protocols designed to ensure fulfillment of the objectives of their commitme n t 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 prot ected activity was having on his treatment would motivate those responsible for administeri ng 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 reaso ns, 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 adver se action

— Olive r must allege that it is his protec ted activity itself, not just the medically relevant collateral consequences of that activity , that played a role in Roquet’s recommendation not to advance22 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 TPR C 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 R eport 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 S ome Courts of Appeals have arrived at a similar result at the summary judgment stage, hol ding 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 87 6, 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
recommenda tion that detai nee be taken into custody on political statements detainee made on an online social media website). For the reasons discussed ab ove, however, we
conclude that

— at least in the context of mental health evaluations of the civilly committed, which is the only co ntext 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 t o participate in a recommended component of his treatment program. The

R eport further reflects that Oliver has manipulated other inmates and abused the power these activities vest in him b y charging fee s 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 wit h the STU staff particularly concerning, as he has a “history” of simila r animosity and these
conflicts “ultimately took precedence over [Oliver’s] participating in the treatment program” in the past. App. 47.

Oliver has not alle ged 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 [Olive r’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 ca ses wher e 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 plu s, ”

— i.e., where

, in addition to consideration of the protected activity by way of its association with medically relevant conduct, there are specific
fact ual alleg ations supporting an inference that the adverse
action was based o n the protected activity itself. For example, a prima facie case might be established if there were specific24 factual allegations suggesting that the collateral consequences were fabricated, that the defendant had communicated anger or frustration with the protected activity itsel f 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 , t hey 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 leg al 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 exa ctly 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 w ho is a friend of Roquet’s. But where Roquet was not the subject of, or involved with, those complaints in any way, t hose alle gation s support nothing more than “a sheer possibility” that Roquet had a motive to retaliate25 against him, Iqbal , 556 U.S. at 678, and cannot stand in f or a causal link that is missing. Absent supporting facts that make
it reasonable to draw an inference of retaliation, these

c onclusory 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 ” a re 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 acknowledg ment o f sexual offense history” and “[a] cceptance of at least some personal responsi bility 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 evas ive” 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 colleagu e had
left the interview room. Whatever concerns we would26 In short, Oliver has not sufficiently alleged any direct

“ causal link ” between Roquet’s r ecommendation and his Fi rst Amendment protected activities

. Rauser , 241 F.3d at 333.
Instead , the “ causal link ” Oliver alleges is between the
recommendation and faci ally legitimate and uncontested
medical observations that

, by happenstance , result from those activities, and, absent allegations support ing a rea sonable
inference that Roquet based her recommen dation 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 be c ause the right that he asserts was violated was not clearly established at the time Roquet wrote
the TPRC R eport

. 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) ). T his inquiry requires us to “define the right alleg edly

otherwise have with the introduction of this self

- serving
documen t on appeal, we do not recogn ize 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 sel f

- 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 d istrict
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).

H ere, Oliver alleges that Roquet violated his First Amendment rights merely by identifying ways in which his legal activities affected his treatment a nd considering those observations among others in making a medical
recommendation. I n the absence of facts supporting an
i mproper 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
indica ted, let alone cle arly established

, ” such a right. Sharp

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

, medical

pro fessional s cannot be prohibited f r om taking into account
such activities to the extent those activities on their face bear
on the clinical assessment s 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 lea st in part, on the effects of Oliver’s legal activities on his medical prog ress

. 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 proceedin gs consistent with this opinion.