                                         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.
                    (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




                              2
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




                               3
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




                               4
      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 counter-
      therapeutic in any other way. It is of some
      concern that he reported problems with officers




                              5
       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.




                               6
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 re-
asserted 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-CV-
1881, 2014 WL 1449634, at *2-5 (D.N.J. Apr. 14, 2014).




                              7
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.




                               8
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




                               9
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 re-
designation 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




                               10
        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.




                               11
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.




                                 12
                               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).




                               13
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




                               14
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).




                               15
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




                               16
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




                               17
        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.




                                18
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.




                               19
        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




                              20
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




                               21
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.




                               22
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




                               23
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




                              24
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




                               25
        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).




                               26
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.




                                 27
