Case Information
*1 Before: AMBRO, SMITH and KRAUSE, Circuit Judges Hоnorable D. Brooks Smith, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on October 1, 2016.
(Filed: May 24, 2017) _______________ David L. DaCosta, Esq.
Francesco Ferrantelli, Jr., Esq.
Gerard A. Hughes, Esq. (Argued)
Office of Attorney General of New Jersey Richard J. Hughes Justice Complex 25 Market Street
Trenton, NJ 08625
Counsel for Appellant Stephen A. Fogdall, Esq. (Argued) Schnader Harrison Segal & Lewis 1600 Market Street
Suite 3600
Philadelphia, PA 19103
Amicus Counsel for Appellee ______________ OPINION OF THE COURT ______________ 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 *3 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.
I.
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 *4 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 *5 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 аnd 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 *6 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 spеech 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 *7 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 dеfense,
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,
Roquet did not appeal those rulings but instead re-
asserted 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
Ann. § 10:6–2 (Count Five).
Oliver v. Roquet
, No. 2:13-CV-
1881,
We exercise plenary review over a District Court’s
denial of summary judgment.
Levy v. Sterling Holding Co.,
544 F.3d 493, 501 (3d Cir. 2008). Summary judgment “is
appropriate only where there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law.”
Gonzalez v. AMR
,
II.
We begin by addressing whether we have jurisdiction to hear this appeal. Because we conclude we do, we then consider whether the District Court properly ordered discovery instead *9 of granting summary judgment to Roquet based on her qualified immunity claim.
A.
Government officials are entitled to qualified immunity
“insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
Sharp v. Johnson
,
Here, the District Court said it was not denying qualified immunity, but rather was postponing its decision because, without discovery, Oliver 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. In light of that ruling, Oliver and amicus argue we lack jurisdiction over Roquet’s appeal because: (1) Roquet did not timely raise qualified immunity; (2) Roquet’s defense of qualified immunity has not been denied; and (3) even if Roquet’s qualified immunity defense were denied, it was denied on a factual, not legal, basis. None of these arguments withstand scrutiny.
First, although amicus makes much of the fact that
Roquet did not assert qualified immunity in her first motion to
dismiss, “there is no firm rule” as to when a defendant must
raise this affirmative defense,
Sharp
,
*11
Second, qualified immunity may be “denied,” giving
rise to appellate jurisdiction, not only where the denial is
express. In
In re Montgomery County
, this Court joined
numerous other Courts of Appeals in holding that a district
court’s “implicit denial of the Appellants’ immunity claims is
sufficient to confer appellate jurisdiction.”
Wright v.
Montgomery Cty.
(
In re Montgomery Cty
.),
Third, Roquet’s qualified immunity defense was not denied on a factual basis but rather on an appealable legal too will deem the defense timely raised and, as further discussed below, implicitly denied.
ground. As explained above, the District Court granted
discovery, reasoning that without it Oliver “would be
foreclosed from being able to show that there is a question of
fact as to whether [Roquet] knowingly violated his right to free
speech.” App. 3. This ruling “may be separated into legal аnd
factual components.”
Eddy
, 256 F.3d at 211. The factual
component, apparent on the face of the order, pertains to the
question of whether Roquet’s violation of Oliver’s right to free
speech was knowing. But the legal component, implicit in that
ruling, is the District Court’s conclusion that Oliver had
adequately pleaded such a violation and that the right violated
was then “clearly established.”
Sharp
, 669 F.3d at 159
(quoting
Pearson
,
Having satisfied any concern as to our jurisdiction, we turn to the question of whether Roquet was entitled to qualified immunity.
B.
We start by considering whether Oliver has sufficiently
alleged a violation of his First Amendment rights. This
analysis requires us to “outline the elements a plaintiff must
plead to a state a claim for relief.”
Bistrian v. Levi
, 696 F.3d
352, 365 (3d Cir. 2012). We will then “peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth,” and assuming the veracity
of the well-pled factual allegations that remain, ‘“determine
whether they plausibly give rise to an entitlement to relief.”’
id.
(quoting
Ashcroft v. Iqbal
,
1.
Mindful of the differences between the incarcerated and
the civilly confined,
[5]
we are nonetheless persuaded that
prisoner retaliation actions are an appropriate starting point for
our analysis of the elements of Oliver’s cause of action.
“Retaliating against a prisoner for the exercise of his
constitutional rights is unconstitutional,”
Bistrian
, 696 F.3d at
376, and this is of course no less true where the retaliation is
directed against a civilly cоmmitted person,
see Disability
*14
Rights N.J., Inc. v. Comm’r, N.J. Dep’t of Human Servs.
, 796
F.3d 293, 297 (3d Cir. 2015) (“[C]ommitted individuals are
entitled to at least as much constitutional protection in this
context as prisoners.”);
cf. Youngberg v. Romeo
,
To state a First Amendment retaliation claim, a prisoner
plaintiff must allege (1) “that the conduct which led to the
alleged retaliation was constitutionally protected”; (2) “that he
suffered some ‘adverse action’ at the hands of the prison
officials”; and (3) “a causal link between the exercise of his
constitutional rights and the adverse action taken against him,”
or more specifically, “that his constitutionally protected
conduct was ‘a substantial or motivating factor’ in the
decision” to take that action.
Rauser v. Horn
,
In this case, the parties dispute what is required under
the causation prong of the
Rauser
test and whether Oliver has
alleged facts giving rise to the inference that his protected
activity was a “substantial or motivating factor” in the decision
not to advance him.
[6]
The challenge here is that, although
*15
Oliver makes the conclusory allegation in his complaint that he
suffered an adverse action based on his protected activity, the
facts that Oliver alleges to support that causal link are drawn
from the TPRC Report, and nothing in the Report—which we
may consider in its entirety in this context as a “document
integral to or explicitly relied upon in the complaint,”
In re
Burlington Coat Factory Sec. Litig.
,
[7] While Oliver refers only to certain sections of the
Report in his amended complaint, Roquet included the entire
Report in the appendix to her motion, and we “may consider
an undisputedly authentic document that a defendant attaches
as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the document,”
Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc.
,
Oliver does not argue that it was impermissible for Roquet to base her recommendation оn those behaviors; instead, his argument seems to be that because the Report reflects that Roquet identified his litigation activity as associated with those behaviors, Oliver has sufficiently pleaded causation. In other words, Oliver contends that by alleging a medical professional considered protected activity at all, even if only as a symptom of or giving rise to medically relevant behaviors, a plaintiff can satisfy Rauser ’s causation prong at the pleading stage. That cannot be, and is not, the law. To understand why more is needed in this context, we briefly review the Supreme Court’s and our jurisprudence related to this causation question.
We derived the
Rauser
framework, in significant part,
from
Mount Healthy Board of Education v. Doyle
, 429 U.S.
274 (1977), the Supreme Court’s decision on retaliation claims
arising in the public employment context. The tests developed
by the Court in
Mount Healthy
and our Court in
Rauser
to
assess retaliation claims reflect the premise that protected
activity is virtually never a permissible basis for state
employees to take adverse action, much the way protected
characteristics like race or sex are presumptively invalid bases
for state action in the discrimination context.
See, e.g.
,
McDonnell Douglas Corp. v. Green
,
This premise makes sense in most cases, as there is
rarely a valid reason for a state actor to even consider a
person’s protected activity or characteristics like race and
gender when evaluating if an adverse action is appropriate.
The Supreme Court has acknowledged, however, that there
will be exceptions to this general rule, and that allegations of
mere consideration of protected activity will not always be
enough to plead causation in a retaliation case. Instead, as the
Court explained in
Hartman v. Moore
, the necessary “proof of
a connection” between the protected activity and the adverse
action will “depend on the circumstances.”
[8]
*18
When evaluating what allegations will satisfy this
requirеment, we also must consider the pleading standards set
forth in
Bell Atlantic Corporation v. Twombly
,
With these standards in mind, it is clear that, in the context of a retaliation claim against a mental health professional at a state institution, a prima facie showing of causation requires more than the allegation that the professional based a medical decision on symptomology that happened to relate in some way to a patient’s protected activity. There must be particular facts alleged that allow the court to reasonably infer it is the protected activity itself, and not simply medically relevant behavior associated with that activity, that formed the basis of the defendant’s adverse action. This is so because a medical professional’s holistic acknowledged that the requirement it was adding, a showing of the absence of probable cause to prosecute, would “not necessarily [be] dispositive” in every case, id. at 265, it also observed that the “complexity” of the causation issue needed to be “addressed specifically in defining the elements of the tort,” id. , and therefore concluded “it makes sense to require such a showing as an element of a plaintiff’s case . . . that [] must be pleaded and proven,” id. at 265-66.
approach to diagnosing a patient’s mental health will sometimes require consideration of his otherwise protected speech and conduct to evaluate any adverse consequences they are having on his treatment. Framed in terms of the Rauser test and the relevant pleading standards, an assertion by a mental health detainee that his treating psychologist retaliated against him, based only on the factual allegation that the psychologist considered the effect his First Amendment activity was having on his treatment, would not support the inference that retaliation was the “substantial or motivating factor” for the psychologist’s recommendation.
Suppose,
for example,
that a state-employed
psychologist ordered continued detention and treatment of a
detainee with paranoid schizophrenia based, among other
things, on hеr observation that the detainee’s obsessive filing
of complaints alleging conspiracy theories was symptomatic of
continued paranoia and had consumed his time to the exclusion
of therapeutic activities.
We could hardly say the
psychologist’s “consideration of” the detainee’s protected
activity—to the extent the psychologist simply noted its
association with the symptomology on which her medical
decision was based—was sufficient alone to plead causation
and to create an inference of retaliation. Indeed, to conclude
otherwise would create a perverse incentive for psychologists
to ignore medically relevant detainee behaviors simply because
those behaviors coincidentally involve conduct protected by
the First Amendment. As demonstrated by this example, the
mere allegation that a mental health professional considered a
patient’s protected activity to be associated in some way with
the medically relevant conduct on which the adverse action, on
its face, was based will not raise the patient’s right to relief
“above the speculative level.”
Twombly
,
Our holding is also supported by the Supreme Court’s
repeated admonitions that we owe deference to medical
professionals in both the prison and civil commitment contexts.
See Washington v. Harper
,
This requirement for pleading causation in the context of a mental health professional’s clinical decisions also aligns with New Jersey’s legitimate state interest in providing *21 appropriate rehabilitation to sexually violent offenders. New Jersey’s statutory system is designed to balance the rights of the individual with “the purpose of ensuring that the person participates in necessary treatment and that the person does not represent a risk to public safety.” N.J. Stat. Ann. § 30:4- 27.32(c)(2). The same provision that charges the STU with “provid[ing] or arrang[ing] for custodial care” of sexually violent predators specifies that “the rights and rules of conduct applicable to a person subject to involuntary commitment as a sexually violent predator” are to be established by regulations that “specifically address the differing needs and specific characteristics of, and treatment protocols related to, sexually violent predators.” Id. § 30:4-27.34(a), (d). In short, the constitutional rights of those committed under the state statute are not absolute but are subject to treatment protocols designed to ensure fulfillment of the objectives of their commitment and rehabilitation. To hold that a prima facie case of retaliation could be established merely by alleging that a medical professional considered the еffect a detainee’s protected activity was having on his treatment would motivate those responsible for administering this system to refrain from addressing behavior often pertinent to a detainee’s treatment and would undercut New Jersey’s legitimate interest in rehabilitating its sexually violent offenders.
For all of these reasons, we conclude that in order to satisfy the third element of a prima facie case under Rauser — that the plaintiff’s protected activity was a “substantial or motivating factor” for the defendant’s adverse action—Oliver must allege that it is his protected activity itself, not just the medically relevant collateral consequences of that activity, that played a role in Roquet’s recommendation not to advance *22 him. [9] We now proceed to determine whether Oliver has met this burden.
2.
Applying these principles here, we conclude that Oliver has failed to state a retaliation claim. No facts on the face of Oliver’s complaint or the TPRC Report suggest that Oliver’s protected activity itself, rather than medically relevant collateral consequences of that activity, was the basis of Roquet’s recommendation. The Report expresses concern that Oliver’s litigation activity is a significant distraction from his treatment, as Oliver’s own comments reflect that he is so *23 consumed by his legal activities that he failed to participate in a recommended component of his treatment program. The Report further reflects that Oliver has manipulated other inmates and abused the power these activities vest in him by charging fees for legal services both during his prior incarceration and his current сivil confinement, and that he has created hostility with officers at the program through his protected activity. Roquet elaborated that she found Oliver’s acknowledged conflicts with the STU staff particularly concerning, as he has a “history” of similar animosity and these conflicts “ultimately took precedence over [Oliver’s] participating in the treatment program” in the past. App. 47.
Oliver has not alleged that any of these medical observations, which appear to be appropriate and reasonable on their face, are not true or are exaggerated. Instead, he simply asserts that Roquet’s description of him as “legalistic,” and her observation that he devotes a lot of his time to his litigation activities, “are clearly directed at [Oliver’s] legal activit[y]” itself. App. 17-18. This unsupported conclusory assertion based on statements taken largely out of context is not sufficient to plead causation.
We recognize there may be cases where a medical report purporting to focus only on the collateral consequences of a detainee’s First Amendment activity could be sufficient to establish a prima facie case of retaliation plaintiff where the plaintiff is able to plead “consideration plus,”—i.e., where, in addition to consideration of the protected activity by way of its association with medically relevant conduct, there are specific factual allegations supporting an inference that the adverse action was based on the protected activity itself. For example, a prima facie case might be established if there were specific *24 factual allegations suggesting that the collateral consequences were fabricated, that the defendant had communicated anger or frustration with the protected activity itself or had threatened to take action against the plaintiff, or that the collateral consequences relied upon were irrelevant to the medical judgment in question.
Here, however, to the extent any such “plus” factors can
be gleaned from Oliver’s complaint, they amount to no more
than speculation that Roquet based her recommendation on
anything other than the medically relevant conduct that
pervades her report. For example, Oliver identifies specific
instances of protected activity in which he engaged prior to
Roquet’s recommendation not to аdvance him, alleging that
Roquet “deprived [him] of his [c]onstitutional [r]ights”
because he wrote articles in a newsletter, filed a petition to
remove class counsel in an unrelated civil rights case, and
assisted other residents in their filing of legal grievances
against the STU. App. 23. But these allegations plead the
element of protected activity, not causation, and the conclusory
statement that this activity is what deprived him of his
constitutional rights is exactly the type of “bare assertion[]”
that the Supreme Court has held amounts to “nothing more
than a formulaic recitation of the elements of a constitutional
[retaliation] claim.”
Iqbal
,
Oliver also alleges that he has assisted other detainees
in their suits against various other members of the TPRC,
including another doctor who is a friend of Roquet’s. But
where Roquet was not the subject of, оr involved with, those
complaints in any way, those allegations support nothing more
than “a sheer possibility” that Roquet had a motive to retaliate
*25
against him,
Iqbal
,
Perhaps in an attempt to establish, by process of elimination, that only a retaliatory motive could account for Roquet’s recommendation, Oliver also alleges that he met all of the goals and expectations outlined in the STU Residents Handbook. But again, Oliver offers but a bare allegation, which the TPRC Report that forms the basis for his complaint overwhelmingly contradicts. For example, among these goals and expectations is that the offender show “[s]ome acknowledgment of sexual offense history” and “[a]cceptance of at least some personal responsibility for sexual assaults,” App. 20, but, according to the Report, Oliver “denies, minimizes or justifies much of his documented offense history,” App. 38, “did not demonstrate remorse for his crimes or empathy for his victims,” App. 39, and was “confusing and ultimately evasive” about his offense history, App. 41. [10] *26 In short, Oliver has not sufficiently alleged any direct “causal link” between Roquet’s recommendation and his First Amendment protected activities. Rauser , 241 F.3d at 333. Instead, the “causal link” Oliver alleges is between the recommendation and facially legitimate and uncontested medical observations that, by happenstance, result from those activities, and, absent allegations supporting a reasonable inference that Roquet based her recommendation on anything other than reasonable medical judgment, Oliver has not pleaded the causation required to state a prima facie claim of retaliation.
C.
Even if Oliver had adequately stated a retaliation claim,
he could not prevail because the right that he asserts was
violated was not clearly established at the time Roquet wrote
the TPRC Report. A right is clearly established if “its contours
are ‘sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’”
Sharp
,
violated at the appropriate level of specificity,”
id.
, that is, ‘“in
light of the specific context of the case, not as a broad general
proposition,’”
L.R. v. Sch. Dist. of Phila.
,
Here, Oliver alleges that Roquet violated his First Amendment rights merely by identifying ways in which his legal activities affected his treatment аnd considering those observations among others in making a medical recommendation. In the absence of facts supporting an improper motive, the right asserted by Oliver appears to be the right of a civilly committed detainee to be assessed for treatment progress without consideration of any medical consequences of his legal activities. But “we have never indicated, let alone clearly established,” such a right. Sharp , 669 F.3d at 160. And, for the reasons explained, medical professionals cannot be prohibited from taking into account such activities to the extent those activities on their face bear on the clinical assessments such professionals have been charged with rendering. Necessarily, then, a reasonable STU psychologist in Roquet’s position would not have understood shе was violating a constitutional right by basing her recommendation, at least in part, on the effects of Oliver’s legal activities on his medical progress. For this reason as well, Roquet is entitled to qualified immunity.
III.
For the foregoing reasons, we will reverse the District Court’s order granting Oliver discovery and remand the case for proceedings consistent with this opinion.
Notes
[1] The District Court, without prejudice, did grant Roquet’s motion to dismiss as to Oliver’s four remaining causes of action alleging violations of his constitutional right of access to courts (Counts One and Two), a violation of his rights under the New Jersey Patients’ Bill of Rights, N.J. Stat. Ann. § 30:4–24.2 (Count Four), and a violation of his free speech rights under the New Jersey Civil Rights Act, N.J. Stat.
[2] We express our gratitude to Stephen A. Fogdall of Schnader Harrison Segal & Lewis LLP for accepting this matter pro bono and for the quality of his briefing and argument in this case. Lawyers who act pro bono fulfill the highest service that mеmbers of the bar can offer to indigent parties and to the legal profession.
[3] It is also true, of course, that once a party has filed a
motion to dismiss under Rule 12 of the Federal Rules of Civil
Procedure, that party, with limited exceptions, “must not make
another [such motion] raising a defense or objection that was
available to the party but omitted from its earlier motion,” Fed.
R. Civ. P. 12(g)(2), and we are troubled by what could be
viewed as an end run around this prohibition in Appellant’s re-
designation of her second motion to dismiss as a “motion for
summary judgment.” We note, however, that a defense
omitted from an earlier motion may nonetheless be raised in a
motion for judgment on the pleadings, Fed. R. Civ. P. 12(h)(2);
Leyse v. Bank of Am. Nat. Ass’n
,
[4] “[T]he fact that we have jurisdiction to review the
Appellant[’s] immunity claims does not automatically mean
that we should also decide them,” but resolution is preferable
to remand where, as here, “the issues are purely legal and ripe
for review,” such that there is “little benefit in requiring th[i]s[]
Appellant[] to press [her] claims anew in the District Court,
and to risk yet further delay should that court’s ultimate
decision lead to a subsequent appeal.”
In re Montgomery Cty.
,
[5] As the Supreme Court has explained, “[p]ersons who
have been involuntarily committed are entitled to more
considerate treatment and conditions of confinement than
criminals whose conditions of confinement are designed to
punish.”
Youngberg v. Romeo
,
[6] Although the parties agree that Oliver has sufficiently alleged his engagement in protected legal activity, they disagree and devote much of their briefs to the question of
[8] In that case, the Supreme Court adjusted the requirements of the causation prong of a prima facie retaliation claim to reflect the unique circumstances of a retaliatory prosecution claim against a federal agent, which the Court recognized presented an unusual problem because a plaintiff may only bring the claim against a non-prosecuting government agent, rather than the prosecutor himself, even though it is ultimately the prosecutor’s decision whether or not to bring criminal charges. Id. at 263. Although the Court
[9] Some Courts of Appeals have arrived at a similar result
at the summary judgment stage, holding that liability cannot be
imposed where a medical professional considers a detainee’s
protected expression for legitimate reasons concerning the
implications of that expression for the detainee’s mental health.
See, e.g.
,
Raub v. Campbell
,
[10] Oliver also makes additional allegations for the first time in an affidavit attached to his appellate brief about an ex parte interaction he had with Roquet after her colleague had left the interview room. Whatever concerns we would