Argued: April 14, 2016
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
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.
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.
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
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.
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.
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.
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.
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,  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.
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.
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 ...