Douglas Fauconier v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-01692-TSE-JFA Copies to all parties and the district court/agency. [999858950]. Mailed to: Donald C. Morgan. [15-6109]

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 1 of 12

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 2 of 12

Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 3 of 12

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

proceedings.

records

of

his

underlying

VDOC

grievance

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,
positions

a

while

(“Powhatan”).

VDOC
housed

inmate
at

since

the

2004,

Powhatan

held

several

Correctional

work

Center

At various times, he worked as a cafeteria server

and as a “houseman” — sometimes referred to as a janitor.
3

See

Appeal: 15-6109

Doc: 49

J.A. 5. 1

Filed: 06/20/2016

Pg: 4 of 12

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.
promptly reapplied

for

his

D-8

houseman

job,

but

the

He

prison

officials denied his reapplication due to his medical status of
“work code D.”

See J.A. 6.

medical status,

however,

prior

to

his

2010

Fauconier had possessed that same

while

hospital

working

visit.

as

a

houseman

Nevertheless,

in

since

D-8
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

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 5 of 12

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.”
maintained

that

the

VDOC’s

See J.A. 14.

operating

procedures

Black also
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

violated Title II of the ADA.

account

of

his

medical

status

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

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 6 of 12

that he was “not bed-ridden, and [could] move around [Powhatan]
with

no

alleged

serious
that

offered”

he

by

modifications.”

impediments.”
was

the
Id.

See

“clearly
VDOC,

J.A.

qualified

“with

or

17.
to

Moreover,

perform

without

any

he
job

reasonable

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.”
J.A. 23.

See

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/800/8412.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

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 7 of 12

Fauconier appealed Warden Dillman’s denial of the formal
grievance

to

response.
Powhatan

the

On

VDOC’s

October

facility,

Regional

22,

2014,

Fauconier

was

Ombudsman,

but

received

no

after

VDOC

closed

the

the

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

Fauconier’s

rights

that

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

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 8 of 12

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

process

right

programs.”

dimension,”

to

because

participate

See Opinion 4-5.

in

“prisoners

vocational

have

or

no

due

educational

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.
appeal,

and

we

possess

Fauconier has timely noted this

jurisdiction

pursuant

to

28

U.S.C.

§ 1291. 6

6

Following 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

Appeal: 15-6109

Doc: 49

Filed: 06/20/2016

Pg: 9 of 12

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
considered.

liberally,

but

also

to

have

each

of

his

claims

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

Appeal: 15-6109

Doc: 49

Construed
three

claims

Filed: 06/20/2016

properly,
in

Pg: 10 of 12

Fauconier’s

support

of

his

injunctive, and monetary relief:

pro

se

complaint

requests

for

alleges

declaratory,

(1) an ADA Title II claim of

disability discrimination; (2) a § 1983 due process claim; and
(3) a § 1983 equal protection claim.
that

Eleventh

Amendment

Importantly, it is settled

—

immunity

the

sole

basis

for

the

Opinion’s dismissal of Fauconier’s ADA Title II claim — does not
extend
Verizon
(2002).

to

requests

Md.,

Inc.

for
v.

prospective

Pub.

Serv.

injunctive

Comm’n,

535

relief.
U.S.

See

635,

645

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
10

court

did

not

assess

the

Appeal: 15-6109

Doc: 49

viability

of

Filed: 06/20/2016

such

relief.

Pg: 11 of 12

See

Opinion

3.

With

regard

to

Fauconier’s second appellate contention, the Opinion overlooked
Fauconier’s
complaint

§ 1983

equal

asserts

that

protection
the

claim,

defendants

even

violated

Protection Clause of the Fourteenth Amendment.”

though
“the

the
Equal

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
defendants
equal

argue

protection

that

the

claim,

complaint
and

that,

entitled to qualified immunity.

fails

Additionally, the

in

to

any

state
event,

a

§ 1983

they

are

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).

7

Because

the

complaint’s

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

Appeal: 15-6109

Doc: 49

contentions
were

not

Filed: 06/20/2016

regarding

addressed

defendants’

injunctive

by

mootness

Pg: 12 of 12

the

and

relief

district

qualified

and

court,
immunity

equal
and

protection

because

the

contentions

are

being presented for the first time on appeal, our most prudent
disposition

is

to

vacate

and

remand,

and

thus

“allow

district court to address [them] in the first instance.”

the
See

Jennings v. Univ. of N.C., 482 F.3d 686, 702 (4th Cir. 2007) (en
banc). 8

IV.
Pursuant
remand

for

to
such

the

foregoing,

other

and

we

further

vacate

the

proceedings

judgment
as

may

and
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