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Oliver v. Roquet

United States Court of Appeals, Third Circuit

May 24, 2017


          Argued: April 14, 2016

         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

          David L. DaCosta, Esq. Francesco Ferrantelli, Jr., Esq. Gerard A. Hughes, Esq. (Argued) Office of Attorney General of New Jersey Counsel for Appellant

          Stephen A. Fogdall, Esq. (Argued) Schnader Harrison Segal & Lewis Amicus Counsel for Appellee

          Before: AMBRO, SMITH [*] and KRAUSE, Circuit Judges


          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 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.


         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 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 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 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 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 reasserted 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 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 ...

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