                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 15-1339
                                   _______________

                                 TYLER HAMMOND,

                                                        Appellant

                                            v.

                            CITY OF WILKES BARRE;
                          MAYOR THOMAS M. LEIGHTON
                                _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3-13-cv-02322)
                      District Judge: Hon. Malachy E. Mannion
                                  _______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 9, 2015

            BEFORE: SHWARTZ, KRAUSE AND COWEN, Circuit Judges

                            (Opinion Filed: October 9, 2015)

                                    ______________

                                       OPINION*
                                     _____________


COWEN, Circuit Judge.



*
 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
       The plaintiff-appellant, Tyler Hammond (“Appellant”), filed a second amended

complaint alleging only a First Amendment retaliation claim against the City of Wilkes-

Barre (the “City”) and Mayor Thomas M. Leighton (together, “Appellees”). He now

appeals the District Court’s order dismissing his complaint. Because we conclude that

dismissal was appropriate, we will affirm.

                                              I.

       Because we write solely for the parties, we will only set forth the facts necessary

to inform our analysis.

       Appellant, a city firefighter, brought a lawsuit in 2009 alleging corrupt dealings

involving the City and Leighton. The lawsuit was unrelated to Appellant’s employment

with the City as a firefighter. On June 26, 2013, as part of that lawsuit, Appellant and his

wife were deposed. Approximately two weeks later, the Wilkes-Barre Police Department

opened a criminal investigation to determine whether Appellant had misappropriated the

likeness of another individual or falsely held himself out as the Mayor of the City. The

investigation lasted for over a year, but never resulted in Appellant’s arrest. Moreover,

on September 6, 2013, Plaintiff was required to appear at an employment hearing, the

outcome of which he has never been informed. Appellant alleges that Leighton directed

both that the investigation be opened and that the Human Resources Director bring

charges against him in retaliation for his filing the lawsuit and for his deposition

testimony.

       In an order dated January 6, 2015, the District Court dismissed Appellant’s First

Amendment retaliation claim. It also dismissed any Monell claim Appellant might have
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been asserting against the City for failure to train its officials. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978). Finally, it denied Appellant’s request to further amend his

complaint. The current appeal followed, challenging only the District Court’s denial of

Appellant’s retaliation claim.

                                              II.

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

dismissal for failure to state a claim under a plenary standard. See Lazaridis v. Wehmer,

591 F.3d 666, 670 (3d Cir. 2010) (per curiam). Dismissal is appropriate where the

pleader has not alleged “sufficient factual matter, accepted as true, to state a claim that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks and citation omitted). We may affirm on any basis supported by the record. See

Brown v. Dep't of Health Emergency Servs Training Inst., 318 F.3d 473, 475 n.1 (3d Cir.

2003) (citation omitted).

       To establish a First Amendment retaliation claim pursuant to section 1983,

Appellant must establish three elements: “(1) constitutionally protected conduct, (2)

retaliatory action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights, and (3) a causal link between the constitutionally protected conduct

and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006).

       We have recognized “that a suggestive temporal proximity between the protected

activity and the alleged retaliatory action can be probative of causation. ” Thomas v.

Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (citing Rauser v. Horn, 241 F.3d

330, 334 (3d Cir. 2001)). However, “the timing of the alleged retaliatory action must be
                                               3
unusually suggestive of retaliatory motive before a causal link will be inferred.” Id.

(quoting Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (internal quotation

marks omitted)). Moreover, we have generally required that the defendant in First

Amendment retaliation actions be aware of the protected conduct in order to establish the

requisite causal connection. See Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d

Cir. 2002).

                                              III.

       As an initial matter, we will assume that Appellant engaged in constitutionally

protected conduct, and that the alleged retaliatory actions are sufficient to deter a person

of ordinary firmness from exercising his constitutional rights. We therefore focus our

attention on the third prong of the analytical framework for considering First Amendment

retaliation claims: whether Appellant has demonstrated the necessary causal link between

the constitutionally protected conduct and the retaliatory action.

       As indicated, for temporal proximity to be probative of causation, the timing of the

retaliatory action must be “unusually suggestive” of retaliatory motive. See Hammonton,

351 F.3d at 114. There is no such temporal proximity here. Appellant’s first alleged

protected activity -- the filing of his first lawsuit against the City and Leighton --

occurred in 2009. But the criminal investigation and employment hearing did not occur

until nearly four years later, in 2013. This is simply too great a passage of time to

conclude that these actions were ordered in retaliation for Appellant’s decision to file his

first lawsuit. See id. (concluding in part that because three weeks had passed between a

complaint being filed and a termination letter being issued, the “chronology of events
                                               4
does not provide substantial support for [the plaintiff’s] position”).

       Appellant appears to acknowledge this weakness in his position as he does not

bother to mention in his reply brief, much less address, the temporal proximity between

his filing of his initial lawsuit and the alleged retaliatory conduct. Rather, he argues only

that there is sufficient temporal proximity between the criminal investigation of him and

his deposition testimony in the 2009 lawsuit, because the investigation was ordered less

than two weeks after he testified under oath. This argument gets Appellant only so far.

       Although two weeks may be close enough temporally to be probative of

causation, we have generally required that defendants in First Amendment retaliation

actions be aware of the protected conduct in order to establish the requisite causal

connection. See Ambrose, 303 F.3d at 493-94 (noting that temporal proximity may not

be used to show that a defendant was aware of the protected conduct in the first place).

Here, Appellant has not sufficiently alleged that Appellees were aware of his testimony.

To be sure, Appellant’s complaint contains the general allegation that “[Appellees] were

aware of [Appellant’s] protected activities and retaliated against him causing him even

more mental anxiety, stress and sleeplessness. . . .” (2d Am. Compl. ¶ 41.) But we are

not required to credit such a bald assertion, and we decline to do so. See Evancho v.

Fisher, 423 F.3d 347, 353-55 (3d Cir. 2005). Somewhat tellingly, Appellant does not

address Appellees’ argument that they had no such notice, choosing instead to rely solely

on the temporal proximity between his testimony and the alleged date the criminal

investigation targeting him began. Under these circumstances, we conclude that

Appellant has insufficiently pled facts necessary to establish a causal connection between
                                              5
any protected activity and the alleged retaliatory actions.

                                             IV.

       In light of the foregoing, the District Court’s order entered on January 6, 2015,

will be affirmed.




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