                                                               NOT PRECDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 12-3960
                                    ____________

                                    ODISE CARR,

                                                Appellant

                                          v.

                            CITY OF CAMDEN;
                  CITY OF CAMDEN POLICE DEPARTMENT;
                   JOHN SOSINAVAGE; SCOTT THOMSON;
                      MARIO ORTIZ; JOHN DOES 1-10



                  On Appeal from the United States District Court
                           for the District of New Jersey
                             (D. C. No. 1-09-cv-04717)
                    District Judge: Honorable Noel L. Hillman


                       Submitted under Third Circuit LAR 34.1(a)
                                 on November 7, 2013

        Before: GREENAWAY, Jr., VANASKIE and ROTH, Circuit Judges

                          (Opinion filed: December 13, 2013)


                                    OPINION


ROTH, Circuit Judge:




                                          1
       Odise Carr appeals the District Court‟s order granting summary judgment to the

defendants, the City of Camden, the City of Camden Police Department, John

Sosinavage, Scott Thomson, and Mario Ortiz, on Carr‟s claim of First Amendment

retaliation pursuant to 42 U.S.C. § 1983. For the reasons set forth below, we will affirm.1

       On July 29, 2008, Carr testified under oath at a disciplinary proceeding in support

of two other officers. In his complaint, Carr alleges that the defendants retaliated against

him, in violation of the First Amendment, for the content of this testimony by launching

an investigation into his role in a 2005 arrest of a minor. At the conclusion of this

investigation, Carr was administratively charged with “conduct unbecoming an employee

in the public service” for his role in the 2005 arrest and was eventually terminated from

his position with the police department. Approximately one year after his dismissal, a

New Jersey administrative law judge ordered that Carr be reinstated with full back pay

and seniority because the police department had not met its burden of proving that Carr

had engaged in unbecoming conduct.

       The District Court had subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331

and 1367, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The sole

issue on appeal is whether Carr submitted sufficient evidence of causation to preclude

summary judgment on his retaliation claims. We hold that he did not.




1
  The parties stipulated to the dismissal of Carr‟s appeal with respect to the municipal
entities, which we granted. As a result, we review the District Court‟s decision only
insofar as it relates to claims against the individual defendants: Sosinavage, Thomson,
and Ortiz.
                                             2
       We employ “a de novo standard of review to grants of summary judgment,

„applying the same standard as the District Court.‟” Montone v. City of Jersey City, 709

F.3d 181, 189 (3d Cir. 2013) (quoting Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d

Cir. 1995)). Under this standard, a court must “view the underlying facts and all

reasonable inferences there from in the light most favorable to the party opposing the

motion.” Id. (internal quotation marks omitted). A court “shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       Carr submitted no evidence in response to defendants‟ motion for summary

judgment that would even arguably link the decision to investigate the 2005 arrest with

his 2008 testimony. With respect to Thomson and Ortiz, Carr failed to submit any non-

speculative evidence that either defendant was personally involved in the alleged

retaliatory conduct. See Argueta v. U.S. Immigration and Customs Enforcement, 643

F.3d 60, 72 (3d Cir. 2011). Although Carr argues that Thomson was the chief of the

Camden Police Department at the time of the investigation, § 1983 “liability cannot be

predicated solely on the operation of respondent superior.” Evancho v. Fisher, 423 F.3d

347, 353 (3d Cir. 2005). Similarly, Carr‟s argument that certain statements made by

Ortiz are evidence of an intent to retaliate does not raise a genuine issue of material fact

because there is no evidence in the record to suggest that Ortiz played any role in the

decision to investigate the 2005 arrest.

       Although it is undisputed that Sosinavage made the decision to investigate Carr‟s

role in the 2005 arrest—which ultimately resulted in his termination—Carr again fails to

                                              3
point to any evidence that would causally link this decision to his 2008 testimony.

Instead, Carr argues that the mere temporal proximity of the investigation to his

testimony raises an inference of retaliation that is sufficient to defeat summary judgment.

See LeBoon v. Lancaster Jewish Cmty. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). We

disagree.

       As the District Court noted, the only evidence in the record indicates that

Sosinavage made the decision to conduct a further investigation into the 2005 arrest

weeks before Carr‟s testimony. The Camden Police Department was prohibited from

administratively investigating the 2005 arrest prior to this time because it was operating

under a stay requested by the Camden prosecutors‟ office while it pursued a criminal case

against certain of the officers involved in the incident. Based on this timeline, there is

nothing “unusually suggestive” about the timing of the Internal Affairs‟ investigation into

Carr‟s role in the 2005 arrest. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d

Cir. 2000). In addition, the nearly three month gap between Carr‟s testimony and his

termination is not itself unusually suggestive. LeBoon, 503 F.3d at 233.

       As a plaintiff opposing summary judgment, Carr had the burden to “produce

evidence that, when considered in light of [his] burden of proof at trial, could be the basis

for a jury finding in” his favor. SEC v. Hughes Capital Corp., 124 F.3d 449, 452 (3d Cir.

1997) (citing Kline v. First Western Gov’t Sec., 24 F.3d 480, 485 (3d Cir. 1994)) (internal

quotation marks omitted). Because he failed to produce any evidence of causation, Carr

has failed to meet his burden. For this reason, we will affirm the District Court‟s order

granting summary judgment to the defendants.

                                              4
