UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6109
DOUGLAS FAUCONIER,
Plaintiff – Appellant,
v.
HAROLD W. CLARKE, Director for the Department of
Corrections; JEFFERY N. DILLMAN, Warden of Powhatan
Correctional Center; LUKE ISIAH BLACK, Institutional
Programs Manager; LAKENESHA SPENCER, Programs Assignment
Reviewer,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis III, Senior
District Judge. (1:14-cv-01692-TSE-JFA)
Argued: January 28, 2016 Decided: June 20, 2016
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Donald C. Morgan, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant. Matthew Robert
McGuire, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees. ON BRIEF: John J. Korzen, Director,
Taylor N. Ey, Third-Year Law Student, Appellate Advocacy Clinic,
WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North
Carolina, for Appellant. Mark R. Herring, Attorney General,
Stuart A. Raphael, Solicitor General, Trevor S. Cox, Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Douglas Fauconier, an inmate in the custody of the Virginia
Department of Corrections (the “VDOC”), appeals the district
court’s dismissal of his pro se complaint against several VDOC
officials. Fauconier’s complaint alleges that the defendants
unlawfully discriminated against him with respect to VDOC work
programs, in contravention of the Americans with Disabilities
Act (the “ADA”) and the Fourteenth Amendment. The court
dismissed the complaint under 28 U.S.C. § 1915A for failure to
state a claim. As explained below, we vacate and remand.
I.
In December 2014, Fauconier filed his pro se complaint in
the Eastern District of Virginia, attaching and making a part
thereof certain records of his underlying VDOC grievance
proceedings. The allegations of the complaint, together with
its attachments — accepted as true and construed liberally —
provide the factual background for this proceeding. See
De’lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013).
A.
Fauconier, a VDOC inmate since 2004, held several work
positions while housed at the Powhatan Correctional Center
(“Powhatan”). At various times, he worked as a cafeteria server
and as a “houseman” — sometimes referred to as a janitor. See
3
J.A. 5. 1 As a houseman, Fauconier was responsible for cleaning
the living quarters he shared with other inmates. In late 2010,
Fauconier was a houseman in Dormitory 8 at Powhatan (“D-8”).
Fauconier suffers from myasthenia gravis, a neuromuscular
disease for which he has been hospitalized on several occasions. 2
One such hospitalization occurred in October 2010, when he was
briefly admitted to the Medical College of Virginia (the “2010
hospital visit”). Upon returning to Powhatan, Fauconier was
placed in a different housing unit and removed from his D-8
houseman job. Although Fauconier had always resumed his work
duties following prior hospitalizations, he was not given a work
position in his new housing unit after the 2010 hospital visit.
Some time later, Fauconier was transferred back to D-8. He
promptly reapplied for his D-8 houseman job, but the prison
officials denied his reapplication due to his medical status of
“work code D.” See J.A. 6. Fauconier had possessed that same
medical status, however, while working as a houseman in D-8
prior to his 2010 hospital visit. Nevertheless, since that
hospital visit, the prison officials have consistently denied
1 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
2 Although Fauconier did not specifically identify his
disability in the district court, on appeal he explains — and
the defendants do not contest — that he suffers from myasthenia
gravis.
4
Fauconier’s applications for various work positions because of
his medical status. 3
In October 2013, Fauconier filed an informal complaint with
the VDOC, alleging that the prison officials had violated Title
II of the ADA by excluding him from Powhatan’s work programs on
the basis of his medical status. Responding to that informal
complaint, defendant Luke Black — Powhatan’s Programs Manager —
advised Fauconier that “medical work code ‘D’ means no work,
making you ineligible for all jobs.” See J.A. 14. Black also
maintained that the VDOC’s operating procedures justified
Fauconier’s exclusion from Powhatan’s work programs. 4
In November 2013, Fauconier filed a formal grievance with
the prison officials, again maintaining that excluding him from
Powhatan’s work programs on account of his medical status
violated Title II of the ADA. Specifically, Fauconier explained
3 Fauconier’s complaint and its attachments do not reveal
when he was first assigned work code D medical status, nor do
they identify the criteria for that designation.
4 Although Fauconier did not file the VDOC’s operating
procedures with his pro se complaint, we are entitled to
consider them here, as the complaint refers to them and they are
publicly available on the VDOC website. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)
(recognizing that a court may consider during Rule 12(b)(6)
review any “documents incorporated into the complaint by
reference, and matters of which a court may take judicial
notice”); see also Hall v. Virginia, 385 F.3d 421, 424 & n.3
(4th Cir. 2004) (taking judicial notice of information publicly
available on official government website).
5
that he was “not bed-ridden, and [could] move around [Powhatan]
with no serious impediments.” See J.A. 17. Moreover, he
alleged that he was “clearly qualified to perform any job
offered” by the VDOC, “with or without reasonable
modifications.” Id. Fauconier also sought back pay for his D-8
houseman position, dating to the 2010 hospital visit.
In December 2013, Warden Jeffrey Dillman, another defendant
here, rejected Fauconier’s formal grievance as “unfounded.” See
J.A. 23. Specifically, Dillman advised that Fauconier’s medical
status made him “ineligible to work at this time.” Id. Dillman
explained that, pursuant to VDOC Operating Procedure 841.2 (“OP
841.2”), defendant Lakenesha Spencer — as Powhatan’s Programs
Assignment Reviewer — was required to consider Fauconier’s
medical status when deciding whether to place him in a vacant
job. Dillman concluded that OP 841.2 had been properly applied
in denying Fauconier’s work position applications. 5
5
OP 841.2(C)(2)(f) provides, in pertinent part, that a VDOC
Programs Assignment Reviewer should determine an inmate’s
eligibility for a vacant position “based on factors such as
security level, medical classification, and offense history.”
See Va. Dep’t of Corr., Offender Work Programs,
http://vadoc.virginia.gov/About/procedures/documents/800/841-
2.pdf (last visited June 6, 2016). As OP 841.2 states — and as
the defendants conceded at oral argument — the inmate’s medical
classification is only one of the eligibility factors to be
considered. The record is silent, however, as to whether
Fauconier’s security level, his offense history, or any other
relevant factor was considered when his work applications were
denied. Nor does the record reveal why Fauconier was able to
(Continued)
6
Fauconier appealed Warden Dillman’s denial of the formal
grievance to the VDOC’s Regional Ombudsman, but received no
response. On October 22, 2014, after the VDOC closed the
Powhatan facility, Fauconier was transferred to the Augusta
Correctional Center (“Augusta”), where he is presently confined.
B.
On December 10, 2014, Fauconier initiated these proceedings
by filing his pro se complaint against four VDOC officials:
Director Harold Clarke, Warden Dillman, Programs Manager Black,
and Programs Assignment Reviewer Spencer, in their official and
individual capacities. Fauconier’s complaint alleges violations
of his “rights under Title II of the ADA” and “the provisions of
§ 1 of the Fourteenth Amendment” — including due process and
equal protection. See J.A. 8. As relief, the complaint seeks a
declaration that Fauconier’s rights have been violated, a
“preliminary and permanent injunction” ordering the defendants
to stop discriminating against him, and damages. See id.
Fauconier also filed motions seeking the appointment of counsel
and permission to proceed in forma pauperis.
Three weeks later, before process had been served on any of
the defendants, and without any submissions being made to the
work as a D-8 houseman prior to his 2010 hospital visit, despite
his work code D medical status.
7
district court on their behalf, the court dismissed Fauconier’s
pro se complaint in its entirety under 28 U.S.C. § 1915A, for
failure to state a claim. See Fauconier v. Clarke, No. 1:14-cv-
01692 (E.D. Va. Dec. 31, 2014), ECF No. 4 (the “Opinion”). In
pertinent part, § 1915A requires a district court to screen an
inmate’s complaint “as soon as practicable after docketing,” and
to “dismiss the complaint, or any portion of the complaint,” if
it “fails to state a claim upon which relief may be granted.”
In its Opinion, the district court interpreted Fauconier’s
complaint as alleging violations of the Fourteenth Amendment’s
Due Process Clause and of Title II of the ADA. Regarding the
former, the court concluded that the complaint stated “no claim
of constitutional dimension,” because “prisoners have no due
process right to participate in vocational or educational
programs.” See Opinion 4-5. The court then reasoned that the
Eleventh Amendment barred the ADA Title II claim. Fauconier’s
complaint was thus dismissed with prejudice, and his motions for
appointment of counsel and for permission to proceed in forma
pauperis were denied as moot. Fauconier has timely noted this
appeal, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291. 6
6Following initial informal briefing of this appeal, we
ordered formal briefing and appointed Professor John J. Korzen
and the Wake Forest University School of Law Appellate Advocacy
(Continued)
8
II.
We review de novo the dismissal of a complaint under 28
U.S.C. § 1915A for failure to state a claim, utilizing the
standard of review that applies to a Rule 12(b)(6) dismissal.
See De’lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013). To
survive review under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Id. (internal quotation
marks omitted).
III.
A review of a prisoner’s complaint against a governmental
entity or officer under 28 U.S.C. § 1915A presents the first
opportunity for a federal district court to separate cognizable
claims from colorless cavils. When such a review is conducted,
the pro se inmate is entitled not only to have his complaint
construed liberally, but also to have each of his claims
considered. Moreover, the court is obliged to apply the proper
legal standards in making that review.
Clinic to represent Fauconier in this proceeding. Professor
Korzen and his law students have ably served their client, and
we commend their efforts.
9
Construed properly, Fauconier’s pro se complaint alleges
three claims in support of his requests for declaratory,
injunctive, and monetary relief: (1) an ADA Title II claim of
disability discrimination; (2) a § 1983 due process claim; and
(3) a § 1983 equal protection claim. Importantly, it is settled
that Eleventh Amendment immunity — the sole basis for the
Opinion’s dismissal of Fauconier’s ADA Title II claim — does not
extend to requests for prospective injunctive relief. See
Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645
(2002). In addition, the claim for damages under the ADA runs
against the state, and not against the defendants individually.
On the other hand, the § 1983 claims for damages run against the
defendants individually.
On appeal, Fauconier does not challenge the district
court’s dismissal of his § 1983 due process claim, but raises
three contentions. First, he insists that the court failed to
address his request for injunctive relief. Second, he maintains
that the court overlooked his § 1983 equal protection claim.
Finally, he argues that the court erred in its application of
the Eleventh Amendment to his ADA Title II claim. On this
record, we are constrained to agree.
Regarding Fauconier’s first contention, we observe that,
although the Opinion recognized that Fauconier was requesting
“injunctive relief,” the district court did not assess the
10
viability of such relief. See Opinion 3. With regard to
Fauconier’s second appellate contention, the Opinion overlooked
Fauconier’s § 1983 equal protection claim, even though the
complaint asserts that the defendants violated “the Equal
Protection Clause of the Fourteenth Amendment.” See J.A. 4.
The defendants respond on appeal that the district court’s
analytical omissions are of no moment, and that we should affirm
the dismissal of Fauconier’s complaint. Specifically, they
contend that the VDOC’s transfer of Fauconier to Augusta has
rendered moot any possible injunctive relief. 7 Additionally, the
defendants argue that the complaint fails to state a § 1983
equal protection claim, and that, in any event, they are
entitled to qualified immunity. In other words, the defendants
ask us to affirm the dismissal of Fauconier’s complaint on the
basis of three contentions — mootness of the injunctive relief
request, insufficiency of the equal protection claim, and
qualified immunity — that were neither interposed nor considered
in the district court. We are unwilling to do so.
Put succinctly, our Court is one “of review, not of first
view.” See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006)
(internal quotation marks omitted). Because the complaint’s
7
Fauconier argues that his injunction request is not moot,
asserting, inter alia, that VDOC Director Clarke is responsible
for applying OP 841.2 at all VDOC facilities, including Augusta.
11
contentions regarding injunctive relief and equal protection
were not addressed by the district court, and because the
defendants’ mootness and qualified immunity contentions are
being presented for the first time on appeal, our most prudent
disposition is to vacate and remand, and thus “allow the
district court to address [them] in the first instance.” See
Jennings v. Univ. of N.C., 482 F.3d 686, 702 (4th Cir. 2007) (en
banc). 8
IV.
Pursuant to the foregoing, we vacate the judgment and
remand for such other and further proceedings as may be
appropriate.
VACATED AND REMANDED
8
We also agree with Fauconier that, in failing to account
for his equal protection claim, the district court erred in its
Eleventh Amendment analysis. See United States v. Georgia, 546
U.S. 151, 159 (2006) (announcing three-part inquiry governing
application of Eleventh Amendment to ADA Title II damages claim,
which includes determining whether underlying conduct might also
violate Fourteenth Amendment).
12