                                                      NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                          ______________

                               No. 19-2181
                             ______________

                             JOHN CURLEY,
                                   Appellant

                                     v.

MONMOUTH COUNTY BOARD OF CHOSEN FREEHOLDERS; SERENA
    DIMASO, ESQ., in her official capacity as Monmouth County Chosen
  Freeholder; THOMAS A. ARNONE, in his official capacity as Monmouth
     County Chosen Freeholder; GARY RICH, in his official capacity as
   Monmouth County Chosen Freeholder; LILLIAN BURRY, in her official
capacity as Monmouth County Chosen Freeholder; MICHAEL FITZGERALD,
    ESQ., in his individual and official capacity as County Counsel; TERI
 O’CONNOR, in her individual and official capacity as County Administrator;
  PATRICK IMPREVEDUTO, in his official capacity as Monmouth County
   Chosen Freeholder; GERRY P. SCHARFENBERGER, in his individual
            capacity and as Monmouth County Chosen Freeholder
                              ______________

              On Appeal from the United States District Court
                        for the District of New Jersey
                       (D.C. Civ. No. 3-17-cv-12300)
               District Judge: Honorable Brian R. Martinotti
                               ______________

                Submitted under Third Circuit L.A.R. 34.1(a)
                              June 30, 2020

     BEFORE: KRAUSE, PHIPPS, and GREENBERG, Circuit Judges.

                           (Filed: July 15,2020)
                                       ______________

                                          OPINION *
                                       ______________

GREENBERG, Circuit Judge.

                                  I.     INTRODUCTION

       This matter comes on before this Court on the appeal of Plaintiff-Appellant John

Curley who challenges the District Court’s orders dated July 25, 2018, and April 29,

2019, 1 dismissing pursuant to Fed. R. Civ. P. 12(b)(6) his amended complaint and

denying his motion pursuant to Fed. R. Civ. P. 15 for leave to amend his complaint

further. For the reasons stated below, we will affirm the District Court’s orders.



                            II.   FACTUAL BACKGROUND

       From 2010-2018, Curley was an elected freeholder on the Monmouth County

Board of Chosen Freeholders (the “Board”), the County government governing body.

According to Curley, although a Republican, he “has been a persistent and regular




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  The July 25, 2018 Order dismissed without prejudice Curley’s First Amended
Complaint. The April 29, 2019 Order dismissed his Second Amended Complaint and
denied him leave to file a Third Amended Complaint. The Court’s opinions may be
found at 2018 WL 3574880 (D.N.J. July 25, 2018) and 2019 WL 1895065 (D.N.J. Apr.
29, 2019). Curley informed the District Court in correspondence dated May 3, 2019, that
he did not intend to seek leave to file another amended complaint. Accordingly, the
action was concluded in the District Court and we have jurisdiction on this appeal.

                                             2
advocate of positions that run contrary to” those of the Republican members of the

Board, and to the County’s Republican leadership. (Second Amended Complaint

(“SAC”) ¶ 3.)

      In June 2017, Defendants Michael Fitzgerald (“Fitzgerald”) and Teri O’Connor

(“O’Connor”), respectively the County counsel and County administrator, hired Mary

Catherine Cuff, a retired New Jersey appellate judge, to investigate a sexist comment

Curley allegedly made at the May 2017 Bradley Beach, Monmouth County, Memorial

Day parade. On October 13, 2017, Cuff issued a report (the “Report”), which examined

the grievance and other allegations to the end that Curley had engaged in sexually

harassing and/or sexist behavior. Ultimately, Cuff determined that many of the

allegations made against Curley were credible. 2

      Fitzgerald distributed the Report to the Board which led to the Board having a

special meeting on November 29, 2017, in an executive session. The Board discussed the

Report at the special meeting following which Curley gave a letter and memorandum

prepared by his attorney to the Board voicing Curley’s objections to the proceedings. But

Curley did more than complain because he instituted this action on December 1, 2017.

      After the November 29, 2017 meeting, Fitzgerald notified Curley that the Board

would hold a special meeting on December 4, 2017, to consider two resolutions—one to

amend the County’s discrimination policy and another to censure Curley. In the



2
 Not all of the allegations against Curley were sexual in nature, but Cuff found that
Curley’s actions supported an inference that his conduct was sexually discriminatory
and/or created a hostile work environment.
                                            3
meantime, O’Connor prohibited Curley from: (1) entering the Hall of Records, a

Monmouth County building in which Curley had his office, except that he could enter

when he was conducting official County business, and (2) having contact with any

County employee, including his own aide. Although those restrictions remained in place

for two days, 3 notwithstanding the prohibition, Curley returned to the Hall of Records to

“fulfill[] his duties as an elected [f]reeholder.” (SAC ¶ 152.) At the special meeting, 4 the

Board unanimously voted to adopt the resolution to censure Curley and later read the

censure into the record at the following public Board session.

         Curley alleges that following the adoption of the censure resolution, Defendants

prevented him from performing his elected duties in a variety of ways, such as: giving

him “minimal oversight over far fewer divisions and programs within the County” than

he had had previously; O’Connor “attempted to usurp” Curley’s role on various oversight

committees; and Fitzgerald prevented Curley from seeking effective legal advice. (SAC

¶¶ 191-95.) Fitzgerald and O’Connor also retained Cuff to perform an additional

investigation, and on November 5, 2018, Fitzgerald released the agenda for a November

8, 2018 Board meeting, which included a proposed resolution to authorize Cuff to

conduct a third investigation. Curley objected to Fitzgerald’s releasing the agenda on the

day preceding the November 6, 2018 freeholder election at which Curley was a losing


3
  When Curley initiated this action he sought temporary restraints and a preliminary
injunction. The parties appeared before the District Court on December 4, 2017, and
ultimately agreed to the dissolution of the restrictions against Curley and to the filing of
the Report under seal.
4
    The special meeting was adjourned to December 8, 2017.
                                              4
independent candidate as he believed the release would negatively affect his bid for

reelection.

       While the Board proceedings went on, this litigation that Curley already had

instituted continued. Curley pleaded claims under 42 U.S.C. § 1983 and New Jersey law,

principally on the theory that Defendants retaliated against him for his anti-Republican

Party actions as a freeholder in violation of his rights to free speech. In particular, he

pleaded that “Defendants’ actions . . . were intended to prevent [him] from engaging in

constitutionally protected speech in furtherance of his position as a [f]reeholder.” (SAC

¶ 203.)

       In his Second Amended Complaint, Curley included a section entitled, “Curley’s

Political Positions Put[] Him at Odds with the County Republican Establishment.” (SAC

p. 11). He then summarized positions he took on certain matters contrary to that of the

establishment including: (1) “Opposition to ‘Good Old Boys’ Club”; (2) “Exposing

Corruption at Brookdale Community College”; (3) “Opposition to Lucas Land Deal”;

(4) “Conflict Over Authorization for County Healthcare for Freeholders”;

(5) “Opposition to County Wellness Center”; (6) “Sale of County Owned Nursing

Home”; (7) “Opposition to Howell Township Solid Waste Facility”; and (8) “Monmouth

County Tax Board.” (SAC pp. 11-18.) In his Second Amended Complaint, Curley set

forth details of these matters and explained his opposition to the County Republican

establishment on these points. Notably, the last of his acts that can be characterized as a

free speech matter was in 2015.



                                              5
       The District Court dismissed Curley’s First Amendment claim and declined to

exercise supplemental jurisdiction over his state-law claims. This appeal followed.



                 III. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C.

§ 1367(a), and we have jurisdiction under 28 U.S.C. § 1291. We review de novo a

district court’s dismissal under Rule 12(b)(6) for failure to state a claim upon which relief

may be granted. Geness v. Cox, 902 F.3d 344, 353 (3d Cir. 2018). In determining

whether a plaintiff has stated a claim that can survive a motion to dismiss under Rule

12(b)(6), “we accept all well-pleaded allegations as true and draw all reasonable

inferences in favor of the plaintiff. However, we disregard threadbare recitals of the

elements of a cause of action, legal conclusions, and conclusory statements.” City of

Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878-79 (3d Cir.

2018) (internal quotation marks and citation omitted). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Zuber v. Boscov’s, 871

F.3d 255, 258 (3d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

1937, 1949 (2009)). Though we ordinarily review a district court’s “denial of leave to

amend for abuse of discretion[,] we review de novo its determination that amendment

would be futile.” United States ex rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d

837, 849 (3d Cir. 2014).



                                             6
                                    IV. DISCUSSION

       To successfully plead a First Amendment retaliation claim, a plaintiff must allege

that he or she engaged in: “(1) constitutionally protected conduct, (2) [there was]

retaliatory action [against him or her] sufficient to deter a person of ordinary firmness

from exercising his [or her] constitutional rights, and (3) [there was] a causal link

between the constitutionally protected conduct and the retaliatory action.” Thomas v.

Independence Township, 463 F.3d 285, 296 (3d Cir. 2006). As a general matter, for

Defendants’ alleged retaliatory conduct to be actionable, that conduct must have had

more than a de minimis impact on Curley’s First Amendment rights. See McKee v. Hart,

436 F.3d 165, 170 (3d Cir. 2006); Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003).

       Here, we find Curley failed to plead facts plausibly indicating a causal connection

between his conduct and the alleged retaliatory acts. A plaintiff must establish that there

is a causal connection between the constitutionally protected conduct and the alleged

retaliatory action because if a defendant would have engaged in the actions it did even if

the plaintiff had not engaged in his or her conduct it cannot be said that the allegedly

retaliatory act infringed the plaintiff’s First Amendment rights. In this case significant

time has passed between the last of the anti-establishment conduct in which Curley

engaged and Defendants’ actions that Curley claims retaliated against him for his

conduct. Though that time lapse does not necessarily mean that Defendants did not take

their actions to retaliate against Curley for his conduct, this passage of time and lack of

corroborating evidence renders Curley’s claims implausible. See e.g., Lauren W. ex rel.

Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
                                              7
       Although our precedent holds that “unusually suggestive temporal proximity” is

only one way a retaliation plaintiff can plead causation, see Mirabella v. Villard, 853 F.3d

641, 652 (3d Cir. 2017) (citation omitted), “there is no bright line rule for the time that

may pass between protected speech and what constitutes actionable retaliation,” Canard

v. Pa. State Police, 902 F.3d 178, 183 (3d Cir. 2018). Still, we have allowed

time-attenuated retaliation claims to proceed to discovery where there is a “pattern of

antagonism” that sheds light on the “timing of events” enough to justify an inference of

causation. Canard, 902 F.3d at 184 (citation omitted); see Lauren W., 480 F.3d at

267. Absent factual allegations that could support a finding of causation, a significant

period of time between the alleged protected conduct and retaliatory acts is fatal to the

retaliation claim. See, e.g., Estate of Smith v. Marasco, 318 F.3d 497, 512–13 (3d Cir.

2003) (involving a gap of approximately a year and a half). And ultimately, if the scales

are even and the plaintiff has pleaded facts that indicate a “mere possibility of” a causal

connection, dismissal is appropriate. Iqbal, 556 U.S. at 679.

       Here, however, there is a gap of two and half years between the latest protected

conduct and the earliest retaliatory act pleaded in Curley’s complaint. And while

Curley’s allegations of protected conduct go back to 2008, the complaint contains no

specific allegations indicating any “pattern of antagonism” on the part of Defendants, or

for that matter any other allegations giving rise to an inference of causation. In his briefs

on appeal, Curley asserts that Defendants, after years of “simmering resentment,” “seized

the opportunity to retaliate against [him] beginning in June 2017.” (Appellant’s Reply

Br. at 10.) But “simmering” here is a synonym for “invisible,” and none of Curley’s

                                              8
factual allegations, even if assumed true, provides a basis for a finding of the critical

causal link between protected speech and retaliatory acts. For that reason, Curley’s

complaint failed to plead a plausible First Amendment retaliation claim

       Moreover, in addressing the merits of this appeal, Curley contends that the District

Court erred in dismissing his action because the Court invoked an “overly onerous

standard” in that it required Curley to plead “severe” conduct by Defendants for his

complaint to survive their motions to dismiss. We disagree with Curley’s position on this

point. The Court correctly applied our relevant precedent in reaching its conclusion, and

repeatedly explained that to be actionable, conduct must interfere with an elected

official’s “ability to adequately perform [his or her] elected duties.” Werkheiser v.

Pocono Township, 780 F.3d 172, 181 (3d Cir. 2015). Taken in context, a statement that

the Court made referencing an issue of the severity of Defendants’ allegedly retaliatory

conduct merely reinforced its conclusion that Curley did not allege that the conduct in

which Defendants engaged interfered with his performance of his elective duties. Thus,

the Court applied the correct standard and did not place an enhanced pleading burden on

Curley. 5 Nonetheless, in light of our conclusion that Curley has failed to plead causation,



5
  Curley asks us to analyze whether the issue of “severity” of a defendant’s conduct is a
factual matter that must be determined by a jury. But the case on which Curley relies on
this point, Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003), is distinguishable from this
case in that it concerns a public employee to whom different rules apply than those
applicable to an elected public official on a governing body. Moreover, the assessment of
severity is seemingly more of a legal than factual matter in which a court should make the
assessment. See e.g., Bonkowski v. Oberg Indus. Inc., 787 F.3d 199, 203 (3d Cir. 2015).
As such, we reject his jury trial contentions.

                                              9
we need not address the District Court’s application of that standard to the facts alleged

in his Second Amended Complaint.

       Because Curley did not sufficiently plead a First Amendment retaliation claim, we

will affirm the District Court’s July 25, 2018 and April 29, 2019 Orders dismissing the

action and denying the motion to amend. Inasmuch as Curley’s First Amendment

retaliation claims fail, we will not address Defendants’ arguments pertaining to legislative

and qualified immunity.




                                             10
