PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-6427

JULIUS LAMART HODGES

Plaintiff − Appellant 

v. 

COL. PETER MELETIS, Superintendent, in their official capacity; CPT. ALLEN WEST, 

Inmate classification, in his official capacity; LT. WANDA CREIGHTON, Work Release 

Manager, in their official capacity 

Defendants − Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Richmond. David J. Novak, District Judge. (3:21−cv−00614−DJN−EWH)

Argued: March 19, 2024 Decided: July 23, 2024

Before WILKINSON, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed as modified by published opinion. Judge Richardson wrote the opinion, in which 

Judge Wilkinson and Judge Quattlebaum joined.

ARGUED: Rudolph Rosenmayer, WASHINGTON UNIVERSITY SCHOOL OF LAW, 

St. Louis, Missouri, for Appellant. Sharon E. Pandak, PANDAK & TAVES, PLLC, 

Woodbridge, Virginia, for Appellees. ON BRIEF: Steven J. Alagna, Supervising 

Attorney, Noah Smith, Student Advocate, Roger Han, Student Advocate, Kay Groneck, 

Student Advocate, Appellate Clinic, WASHINGTON UNIVERSITY SCHOOL OF LAW, 

St. Louis, Missouri, for Appellant.

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RICHARDSON, Circuit Judge:

In January 2021, the detention facility where Julius Lamart Hodges was incarcerated 

experienced a COVID-19 outbreak. While most inmates quarantined, Hodges volunteered 

to continue working in the kitchen. Though he does not allege that he contracted COVID19 during this time, he claims that the facility’s decision to permit him to volunteer—

resulting in his exposure to the disease—constitutes cruel and unusual punishment under 

the Eighth Amendment. Like the district court, however, we find that Hodges’s allegations

don’t state an Eighth Amendment claim. And since Hodges’s complaint states no other 

viable claim, we affirm the district court’s dismissal.

I. BACKGROUND

A. Factual Background1

In July 2020, Hodges was sentenced to two years’ imprisonment for violating the 

terms of his probation. The Virginia Department of Corrections placed him at the Prince 

William-Manassas Adult Detention Center until he was released in July 2022. While he 

was incarcerated, prison staff encouraged Hodges to join the Detention Center’s Work 

Force program, an inmate-employment program, by telling him that, after eighteen months 

1 This factual recital accepts as true the allegations in Hodges’s complaint, as we are 

required to do when reviewing a dismissal under 28 U.S.C. § 1915(e)(2). De’Lonta v. 

Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Of course, this does not mean we find that

the facts are true; that’s simply not the question before us.

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in Work Force, Hodges would qualify for Work Release.2

 Persuaded, Hodges signed up

and began performing Work Force duties. 

Soon after, the Detention Center suffered a COVID-19 outbreak that originated with 

non-inmate kitchen staff. This led to a facility-wide quarantine from January 26 to March 

6, 2021. Hodges and other Work Force inmates, however, were given the option to either 

leave the Work Force program and quarantine with the rest of the inmates or continue as 

essential workers in the facility’s kitchens. Hodges and seven others elected to continue 

working. 

Because of staffing issues caused by the quarantine, Hodges worked twelve-hour 

shifts every day for at least three weeks around the “outside staff who originally caused the 

COVID-19 outbreak” with no contact tracing. J.A. 7. Plus, he claims to have done the 

work of at least three people, as eleven inmates3 did what normally took thirty-six to thirtynine people to accomplish. So Hodges complained about his working conditions to prison

staff. But his complaints fell upon deaf ears as he was told “to stop complaining” and that

“this [was] what [he] signed up for.” J.A. 8. He also lodged a formal grievance with the 

prison on February 14. This led one official to apologize to Hodges, although the apology’s

specifics are unclear, and another to recognize that Hodges “may have worked more 

2 From the complaint, it appears that Work Force is employment supervised by the 

Detention Center, often involving jobs within the facility itself, while Work Release 

involves unsupervised employment out in the local community. 

3 Hodges first alleged that he and seven other inmates continued to work in Work 

Force during the quarantine. J.A. 7 (“[T]he whole jail population was quarantined besides 

8 Work Force inmates.”). He does not explain how the number of Work Force inmates 

increased to eleven.

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consecutive days than [he] should” have. J.A. 6. But that second official also noted that 

Hodges did not have to continue working. 

B. Procedural Background

On September 6, 2021, Hodges filed this § 1983 action against Detention Center 

officials Col. Peter Meletis, Cpt. Allen B. West, and Lt. Wanda Creighton seeking 

monetary and injunctive relief.4

 The complaint asserted, among other things, that 

Defendants violated Hodges’s Eighth Amendment rights by allowing him to work during 

an outbreak and violated his First Amendment rights by retaliating against him after he 

filed his grievances. Hodges subsequently moved to proceed in forma pauperis (“IFP”), 

which the district court granted. See 28 U.S.C. § 1915. Then, as required by § 1915(e)(2) 

and § 1915A, the district court preliminarily reviewed Hodges’s complaint. The court 

dismissed Hodges’s Eighth Amendment claim for failure to state a claim upon which relief 

could be granted and for being legally frivolous. It also held that Hodges failed to plausibly 

allege that Defendants retaliated against him in violation of the First Amendment. 

Hodges timely appealed. We granted him leave to appeal IFP and ordered that he 

comply with § 1915’s fee-payment provisions. Yet Hodges failed to comply with that

order for June 2022, the month right before his release. Hodges has not remedied that 

failure, nor has he made any more fee payments. 

4 Though Hodges’s complaint named Defendants only in their official capacities, 

the district court liberally construed Hodges’s claim for damages as running against 

Defendants in their individual capacities. Hodges v. Meletis, No. 3:21CV614 (DJN), 2022 

WL 989016, at *4 (E.D. Va. Mar. 31, 2022).

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II. DISCUSSION

Hodges primarily argues on appeal that the district court erred in dismissing his First 

and Eighth Amendment claims. We disagree and thus affirm.

5

A. We decline to dismiss Hodges’s appeal for failure to comply with our 

order directing him to pay fees.

Before reaching this appeal’s merits, we address Defendants’ argument that we 

should dismiss Hodges’s appeal because he failed to make his June 2022 fee payment as 

required by both our order and the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. 

§ 1915. While we have that power, we decline to exercise it in this case.

In order to bring cases in federal courts, prospective litigants must pay a filing fee. 

See 28 U.S.C. § 1913 (courts of appeals); § 1914 (district courts). And ordinarily, the 

plaintiff or appellant must pay the fee at the beginning of a lawsuit or appeal or face 

dismissal. See, e.g., Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam); 

5 Defendants preliminarily argue that Hodges’s release from confinement moots this 

appeal. We have routinely held, however, that transfer or release from a prison facility 

moots only claims for injunctive or declaratory relief. E.g., Williams v. Griffin, 952 F.2d 

820, 823 (4th Cir. 1991). A claim for monetary damages, on the other hand, is not mooted 

by a transfer or release. Id. Accordingly, while Hodges’s claims for injunctive relief are 

moot, we maintain jurisdiction over Hodges’s claims for monetary relief.

In connection with this argument, Defendants submitted a motion to file the affidavit 

of Lt. Jeffrey Kepler, which included five attachments. We deferred decision pending oral 

argument and now grant the motion in part and deny in part. We grant the motion as to 

Attachments A, B, and C, as they establish that Hodges has been released from prison and 

are thus probative of jurisdictional facts. Cf. United States ex rel. Vuyyuru v. Jadhav, 555 

F.3d 337, 348 (4th Cir. 2009). But we deny the motion as to the remaining attachments 

because they exist merely to attack certain factual allegations and inferences stemming 

from Hodges’s complaint. When ruling on a motion to dismiss, we are limited to the 

complaint. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th 

Cir. 2011). So we do not consider those attachments.

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Hall v. United States, 44 F.4th 218, 239 n.10 (4th Cir. 2022) (Richardson, J., concurring in 

the judgment). For indigent parties, however, requiring prepayment might deny them

meaningful access to federal courts. To address this problem, Congress passed the federal

in forma pauperis (“in the manner of a pauper”) statute, which permits federal courts to 

waive the prepayment requirement. See 28 U.S.C. § 1915(a)(1). 

Still, at least for prisoner IFP plaintiffs, the statute is clear that IFP plaintiffs must 

still “pay the full amount of a filing fee.” § 1915(b)(1). But while IFP prisoners aren’t 

relieved from paying the full fee, they are relieved from the prepayment obligation. 

Instead, the IFP statute parcels the prisoner’s fee into smaller amounts to be paid over time. 

First, prisoners must make an initial payment “when funds exist”6 comprised of “20 percent 

of the greater of” either “the average monthly deposits into the prisoner’s account” or “the 

average monthly balance in the prisoner’s account” over the last six months. Id. Then, 

following the initial payment, prisoners are “required to make monthly payments of 20 

percent of the preceding month’s income credited to the prisoner’s account . . . until the 

filing fees are paid.” § 1915(b)(2). So § 1915(b) essentially puts indigent prisoner 

plaintiffs on installment plans for their fees, with their monthly payments pegged to twenty 

percent of their monthly income.

When prisoners fail to make their monthly payments, they risk dismissal as a 

sanction. In federal appellate courts, Federal Rule of Appellate Procedure 3(a)(2) provides 

6 This language is a corollary to § 1915(b)(4), which states, “In no event shall a 

prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment 

for the reason that the prisoner has no assets and no means by which to pay the initial partial 

filing fee.”

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that “[a]n appellant’s failure to take any step other than the timely filing of a notice of 

appeal . . . is ground only for the court of appeals to act as it considers appropriate, 

including dismissing the appeal.” Cf. Fed. R. App. P. 3(e) (“Upon filing a notice of appeal, 

the appellant must pay the district clerk all required fees.”). So “failure to comply with 

any of [§ 1915’s] requirements may result in dismissal of a prisoner’s action.” See, e.g., 

In re Smith, 114 F.3d 1247, 1251 (D.C. Cir. 1997); Larson v. Scott, 157 F.3d 1030, 1032

(5th Cir. 1998); Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003). In this case, 

Hodges failed to make one required monthly payment—his June 2022 payment. 

Accordingly, we may dismiss Hodges’s appeal or impose some other sanction.

7

That said, sometimes a court’s failure to receive payment will not warrant dismissal. 

Normally, it is the prisoner’s custodian, not the prisoner himself, who must make monthly 

payments. § 1915(b)(2) (“The agency having custody of the prisoner shall forward 

payments from the prisoner’s account to the clerk of the court . . . .”). So a prisoner, 

through no fault of his own, may miss payments because the jail or prison has failed to 

submit his payment. See, e.g., Hatchet v. Nettles, 201 F.3d 651, 652 (5th Cir. 2000) (per 

curiam). Courts thus generally inquire into why payments were missed before dismissing

an appeal. Id.; Wilson v. Sargent, 313 F.3d 1315, 1321 (11th Cir. 2002). And if the missed 

7 Because the PLRA’s language gives no indication that its fee provisions are 

jurisdictional, we are not required to dismiss his appeal. Cf. Fed R. App. P. 3(a)(2); Harrow 

v. Dep’t of Def., 144 S. Ct. 1178, 1183 (2024) (explaining that a procedural rule is 

“jurisdictional only if Congress ‘clearly states’ that it is” (quoting Boechler v. Comm’r, 

596 U.S. 199, 203 (2022)).

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payment was not a result of the defendant’s noncompliance, dismissal is inappropriate. 

Wilson, 313 F.3d at 1321; see also Hatchet, 201 F.3d at 652.

The record here, however, reveals why Hodges missed his monthly payment: He 

spent his money on things other than his court fees. He earned $210 dollars in June 2022 

yet withdrew $192.15 for various commissary purchases. That left him with only $17.85. 

But under § 1915(b)(2) and our court order, Hodges was obligated to keep at least $42

(twenty percent of $210) in his prison account to pay the fee. Because he had inadequate 

funds in his account, the prison could not forward his required fee payment to the court. 

Thus, Hodges’s failure did not stem from “circumstances beyond his control, in which case 

his complaint should not be dismissed.” Wilson, 313 F.3d at 1321. Rather, his failure 

followed from his own actions. So we could dismiss Hodges’s appeal.

Even so, we will not dismiss Hodges’s appeal for failure to pay his fees. Hodges 

missed only a single payment, timely submitting all other required fee payments until June 

2022. And Hodges’s release from prison the next month—while his appeal was pending—

meant that he no longer accrued monthly fee obligations under the PLRA. As we have 

held, “the PLRA fee requirements are not applicable to a released prisoner (assuming the 

prisoner made any required payments while in prison).” DeBlasio v. Gilmore, 315 F.3d 

396, 397 (4th Cir. 2003); Torres v. O’Quinn, 612 F.3d 237, 244 n.7 (4th Cir. 2010), 

abrogated on other grounds by Bruce v. Samuels, 577 U.S. 82 (2016) (“[A] released 

prisoner who complies with the PLRA while incarcerated will not be bound to pay 

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outstanding fees after he is released.”).

8

 When inmates are released, they do not “become 

instantly liable for the remaining filing fee balance simply because they have been 

released.” DeBlasio, 315 F.3d at 399. Instead, the court should “allow[] a released prisoner 

to apply to proceed under the general” IFP provision rather than the prisoner IFP provision. 

Id. Here that means Hodges is no longer “bound” by the monthly requirements of 

§ 1915(b), Torres, 612 F.3d at 244 n.7, outside of “any required payments while in prison,” 

DeBlasio, 315 F.3d at 397. He’s treated like any other non-prisoner plaintiff granted IFP 

status under § 1915(a)(1) from the time he was released from prison.

9

Because Hodges’s obligation to pay monthly fees evaporated when he was released 

from prison, the only fee payment he missed was the June 2022 payment. Thus, unlike 

many IFP plaintiffs who had their complaints dismissed, see Cosby, 351 F.3d at 1333–34, 

Hodges missed only one payment at the end of his prison sentence. Yes, he is almost two

years late. But he is only late regarding one forty-two-dollar payment. And given that we 

ultimately decide to affirm the district court on the merits, we decline to dismiss Hodges’s 

appeal on this procedural ground.

8 Not all circuits agree. See, e.g., Gay v. Tex. Dep’t of Corr. State Jail Div., 117 

F.3d 240, 242 (5th Cir. 1997) (holding that a prisoner’s release is “irrelevant” when 

§ 1915’s triggering event—the filing of a complaint or an appeal—occurred while the 

plaintiff was in prison). 

9 We have suggested that released prisoners should be allowed to “apply” under the 

general IFP provision. DeBlasio, 315 F.3d at 399. But Rule 24 specifies that parties who 

were granted IFP status below “may proceed on appeal in forma pauperis without further 

authorization.” Fed. R. App. P. 24(a)(3). So rather than require Hodges to re-apply for 

IFP status, we allow him “to proceed . . . without further authorization.”

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B. Hodges’s complaint fails to state viable Eighth Amendment or First 

Amendment claims.

Moving to the merits, Hodges argues the district court erred by dismissing his 

complaint because it sufficiently alleges Defendants violated his Eighth Amendment and 

First Amendment rights.10 See 28 U.S.C. § 1915(e)(2)(B)(ii). We disagree.

We review a district court’s dismissal for failure to state a claim under the PLRA de 

novo. De’Lonta, 330 F.3d at 633. The standard is the same as under Federal Rule of Civil 

Procedure 12(b)(6): We ask whether, accepting all a complaint’s well-pleaded allegations 

as true, it “state[s] a claim to relief that is plausible on its face.” Jackson v. Lightsey, 775 

F.3d 170, 178 (4th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

1. Hodges’s complaint does not state an Eighth Amendment claim

for cruel and unusual punishment.

The heart of Hodges’s Eighth Amendment claim is that Defendants subjected him 

to cruel and unusual punishment during the COVID-19 lockdown when they allowed him 

to volunteer to work in the prison kitchens. 

The Eighth Amendment provides that “cruel and unusual punishments [shall not be] 

inflicted.” U.S. Const. amend. VIII. By its terms, the Amendment clarifies that it prohibits 

the Government from “inflict[ing]” “punishment” that is “cruel and unusual.” id.

10 Hodges also argues that the district court erred by dismissing his Eighth 

Amendment claim as legally frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Because we 

affirm the district court’s dismissal of that claim for failure to state a claim, we need not

decide whether the claim is legally frivolous. Compare Neitzke v. Williams, 490 U.S. 319, 

325 (1989) (explaining that a complaint is legally “frivolous where it lacks an arguable 

basis . . . in law”), with De’Lonta, 330 F.3d at 633 (explaining that a complaint fails to state 

a claim when the allegations, if true, wouldn’t establish the plaintiff is legally entitled to 

relief).

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(emphasis added). And “to inflict” is a transitive verb meaning “to apply” or “impose.” 1

Samuel Johnson, Dictionary of the English Language (4th ed. 1773); Noah Webster, 

American Dictionary of the English Language (1828). As a transitive verb, it requires a

grammatical subject to exert some action upon an object. Robert Lowth, A Short 

Introduction to English Grammer 30 (1799); see also Bryan A. Garner, Garner’s Modern 

English Usage 1035 (4th ed. 2016). So “infliction” requires an actor to “apply” or 

“impose” some action upon someone else. Furthermore, because the Eighth Amendment 

is a limitation upon the Government, Austin v. United States, 509 U.S. 602, 609 (1993), 

that actor must be the Government or its agents. Thus, by prohibiting the infliction of cruel 

and unusual punishment, the Eighth Amendment operates by limiting what the

Government can do while applying or imposing punishment. 

Historically, that limit has been interpreted to prevent physically barbarous 

punishments, such as torture. Estelle v. Gamble, 429 U.S. 97, 102 (1976). But “more 

recent cases” have established that the Amendment forbids punishments that “involve the 

unnecessary and wanton infliction of pain.” Id. (quoting Gregg v. Georgia, 428 U.S. 153, 

173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). While we need not (and 

likely could not) give an exhaustive account of what constitutes “cruel and unusual

punishment,” the Supreme Court has also held that prison officials violate the Eighth 

Amendment when they fail to “provide humane conditions of confinement” by depriving 

inmates of life’s necessities, Farmer v. Brennan, 511 U.S. 825, 832 (1994); Rhodes v. 

Chapman, 452 U.S. 337, 347 (1981), such as “food, clothing, shelter, medical care, and 

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reasonable safety.” Helling v. McKinney, 509 U.S. 25, 32 (1993) (quoting DeShaney v. 

Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 200 (1989)). 

For a prisoner to assert that prison officials imposed conditions of confinement that 

deprive him of life’s necessities, however, he “must prove two elements—that the 

deprivation [by prison officials] of a basic human need was objectively sufficiently serious, 

and that subjectively the officials acted with a sufficiently culpable state of mind.” Jones 

v. Solomon, 90 F.4th 198, 208 (4th Cir. 2024) (quoting Shakka v. Smith, 71 F.3d 162, 166 

(4th Cir. 1995)). Only then can the officials be charged with inflicting cruel and unusual 

punishment.

This case fails at the outset because Hodges fails to show that prison officials were 

responsible for depriving Hodges of anything, much less a basic human need like

reasonable safety. Helling, 509 U.S. at 33, 35. Hodges volunteered to expose himself to 

the conditions he now challenges. Prison officials gave him a choice between quarantining 

or working. And he chose to work. So even if his choice to work exposed him to greater 

safety risks, the fact that he chose willingly and could have stopped at any time means that 

those officials did not inflict those risks upon him. Cf. Helling, 509 U.S. at 36 (asking 

“whether society considers the risk that the prisoner complains of to be so grave that it 

violates contemporary standards of decency to expose anyone unwillingly to such a risk”

(emphasis added)).

11

11 Because we hold that Hodges’s complaint fails to allege a deprivation by 

government officials, we need not address whether the alleged deprivation was objectively 

serious enough or whether the prison officials acted with a subjectively culpable state of 

mind. See Farmer, 511 U.S. at 834.

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Taking a step back, it’s clear why “conduct in which one voluntarily engages can 

hardly be said to violate the Eighth Amendment.” Haas v. Weiner, 765 F.2d 123, 124 (8th 

Cir. 1985) (per curiam). Again, the Amendment prohibits “the unnecessary and wanton 

infliction of pain” by prison officials. Estelle, 429 U.S. at 102 (emphasis added) (citation 

omitted). And, in the prison setting, the Government can inflict pain both by affirmatively 

acting and by failing to act. Helling, 509 U.S. at 31. That’s because “[w]hen the State 

takes a person into its custody and holds him there against his will,” DeShaney, 489 U.S. 

at 199–200, it largely “incapacitates a prisoner to exercise ordinary responsibility for his 

own welfare,” County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998). So when prison 

officials take away or fail to provide some necessity, the prisoner himself has no other way 

to obtain it, and the officials have thus inflicted the deprivation of that necessity upon him. 

Yet when an inmate can choose to avoid a particular condition or activity or has the

means to secure his own necessities, he necessarily has the power “to exercise 

responsibility for his own welfare.” Id. So, if the inmate exercises (or rather, abdicates)

that responsibility by voluntarily exposing himself to a condition or activity, prison 

officials have not deprived him of any right or necessity. See Helling, 509 U.S. at 36. 

Rather, the prisoner has inflicted that deprivation upon himself. See Legate v. Livingston, 

822 F.3d 207, 209 (5th Cir. 2016) (finding no Eighth Amendment claim based on an 

inmate’s voluntary participation in a religious communal pipe-smoking ceremony from 

which he contracted a disease since “a prisoner cannot establish a violation where he 

willingly participates in the conduct giving rise to his injury”).

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For a concrete example, consider a simplified version of the famous Burt Reynolds 

movie, The Longest Yard (Paramount Pictures 1974).12 There, the protagonist, 

incarcerated football star Paul Crewe, builds a team of inmates to play in an exhibition 

football game against a semi-pro team of prison guards managed by the prison’s warden. 

Motivated by a desire to beat the guards at their own game, many inmates voluntarily join 

the team. But the team is forced to prepare in less-than-perfect conditions, practicing on a 

poorly kept field with outdated equipment (at least until they manage steal some uniforms 

from the guards). And once game day arrives, a predictably rough game ensues.

These facts don’t amount to an Eighth Amendment violation. When an inmate is 

permitted to voluntarily participate in a sport, he, “like any cautious ballplayer outside of 

prison,” has both the capacity and duty “to exercise responsibility for his own welfare” by, 

for example, “examin[ing] the playing field” and declining to play if he deems the risks 

too great. Christopher v. Buss, 384 F.3d 879, 882–83 (7th Cir. 2004). Should he fail to do 

so, that failure cannot then be laid at the feet of prison officials. Id.; see also Wronke v. 

Champaign Cnty. Sheriff’s Off., 132 F. App’x 58, 61 (7th Cir. 2005) (per curiam)

(unpublished) (“Wronke cannot manufacture a constitutional claim by volunteering for a 

job when he could have avoided the offending conditions by choosing to stay in his cell.”). 

Because the inmate voluntarily put himself in the dangerous situation (either deliberately 

or inadvertently), the fact that prison officials merely allowed the inmate to make that 

choice cannot fairly be said to have deprived the inmate of reasonable safety.

12 Or, for those a bit younger, consider Adam Sandler’s 2005 remake.

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Here, Hodges’s complaint doesn’t allege he was unwillingly exposed to the risk of 

COVID-19 any more than Paul Crewe was unwillingly exposed to the risk of footballrelated injuries. Before agreeing to work during the lockdown, Hodges and his coworkers

were “given the option [to] either work as essential workers” or quarantine with the rest of 

the facility. J.A. 7. Nowhere does Hodges allege that his participation was mandated or 

that he could not choose to quarantine. In fact, he alleges that the staff affirmed that he

“d[id] not have to remain” on Work Force if he was dissatisfied with the conditions.13 J.A. 

6. True, electing to quarantine would have resulted in his removal from Work Force and 

disqualification from Work Release eligibility. But Hodges had no constitutional 

entitlement to participate in Work Force or Work Release. See Gaston v. Taylor, 946 F.2d 

340, 344 (4th Cir. 1991). So the Detention Center didn’t condition any constitutional rights 

or basic necessities upon Hodges’s participation. Additionally, “exercise[ing] ordinary 

responsibility for [one’s] own welfare,” Lewis, 523 U.S. at 851, often requires giving up 

some privilege one might otherwise have. So, yes, if Hodges had elected to quarantine, he 

13 Contrast Hodges’s allegations to Rish v. Johnson, 131 F.3d 1092 (4th Cir. 1997). 

There we explained that “[a]lthough the inmates initially volunteered for the duty soon 

after their respective arrivals at F.C.I. Butner, they lacked a full understanding of exactly 

what the position entailed, and having once committed themselves to the task, they could 

not refuse to perform the requisite duties without suffering punishment. Accordingly, the 

inmates’ duties as orderlies were not ‘voluntary’ in the sense that they could avoid the risks 

of which they now complain if they chose to do so.” Id. at 1094 n.3. Hodges alleges 

neither that prison officials hid the risks nor that he could not quit once he began. See

Haas, 765 F.2d at 124.

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would have lost the privileges of Work Force. But that doesn’t mean he kept working

involuntarily. So Hodges has not sufficiently alleged a deprivation by prison officials.14

2. Hodges’s complaint does not state a First Amendment retaliation

claim.

Hodges’s complaint also alleges that prison officials retaliated against him for 

having raised concerns about the working conditions. According to Hodges, he was denied 

Work Release as punishment for his protected complaining in violation of the First 

Amendment. But his complaint doesn’t state such a claim.

A First Amendment retaliation claim requires a plaintiff to show that (1) his “speech 

was protected,” (2) “the defendant’s alleged retaliatory action adversely affected the 

plaintiff’s constitutionally protected speech,” and (3) “a causal relationship exists between 

[the plaintiff’s] speech and the defendant’s retaliatory action.” Suarez Corp. Indus. v. 

McGraw, 202 F.3d 676, 686 (4th Cir. 2000). Hodges asserts that he engaged in protected 

activity by filing grievances regarding his work conditions and that Defendants took 

adverse action against him by “foreclos[ing] Mr. Hodges’s path to Work Release.” 

Appellant’s Br. 30–32. But Hodges has failed to allege a causal relationship between the 

two.

14 This also sufficiently disposes of Hodges’s other claim of cruel and unusual 

punishment—that he was subjected to impermissibly hard work and long hours. If Hodges 

didn’t like the work and hours he was assigned, he didn’t have to do it. So, just like he 

voluntarily chose to expose himself to the COVID-19 risk, he voluntarily chose to expose 

himself to the hard work and long hours. For similar reasons, we reject Hodges’s separate 

allegation that it was cruel and unusual to have him do landscaping during the hot summer.

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Hodges advances three arguments for why the allegations in his complaint satisfy 

the causation prong of a retaliation claim, but all fail. His first argument is that his 

complaint establishes causation because it alleges that the named Defendants (or at least 

Lt. Creighton) knew about his protected activity before taking adverse action against him. 

Yet Hodges’s complaint alleges that he was denied Work Release in August 2020, before 

he began complaining, and again in May 2021. The first denial couldn’t have been caused 

by Hodges’s grievances because he hadn’t made them yet. But even if we only consider 

the later denial of his request for Work Release, knowledge of protected First Amendment 

activity alone “‘does not establish a causal connection’ between the protected activity and 

the adverse action.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 

474, 501 (4th Cir. 2005) (quoting Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004)). 

Instead, a plaintiff must allege some additional evidence that can support an inference of 

causation.

This leads to Hodges’s second argument—that his complaint sufficiently alleges 

causation because it alleges that Lt. Creighton’s “campaign to block [Hodges] from Work 

Release began” “[s]hortly after Mr. Hodges filed his grievance.” Opening Br. at 33.15 To 

Hodges’s credit, temporal proximity alone can create the inference of causation. Penley v. 

McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656 (4th Cir. 2017). But what dooms his 

argument is that we require “the temporal proximity [to be] very close.” Id. “A lengthy 

time lapse between” the defendant learning of the protected speech and the defendant

15 We assume, as Hodges has alleged, that Lt. Creighton, not the Department of 

Corrections, effectively denied Hodges’s application.

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taking the allegedly retaliatory action “negates any inference that a causal connection exists 

between the two.” See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 

653, 657 (4th Cir. 1998).16 

Hodges’s complaint alleges that he was denied Work Release for the second time in 

May 2021, when Hodges received a letter from Lt. Creighton informing him that the 

Department of Corrections had not approved his Work Release application. But the 

protected speech Lt. Creighton allegedly retaliated against Hodges for—his February 14, 

2021, grievance—occurred three-and-a-half months earlier. We have expressly held that 

adverse action taken “three months after” a grievance “did not ‘closely follow’ a protected

activity, and thus does not present a circumstance that courts have characterized as creating 

a strong inference of retaliation.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 127 

(4th Cir. 2021); cf. King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003) (“King’s firing 

came two months and two weeks following Carlson’s receipt of notice that King [took 

protected activity]. This length of time between Carlson’s notice of the complaint and the 

adverse employment action is sufficiently long so as to weaken significantly the inference 

of causation between the two events.”); Pascual v. Lowe’s Home Ctrs., Inc., 193 F. App’x

229, 233 (4th Cir. 2006) (“In this case, at least three to four months separated the [adverse 

action] and the claimed protected activities. We find that this time period is too long to 

establish a causal connection by temporal proximity alone.”). So without more, Hodges’s 

complaint fails to allege a First Amendment retaliation claim.

16 Though Dowe is a Title VII case, we routinely use Title VII precedents in the First 

Amendment-retaliation context. See Penley, 876 F.3d at 656 (citing Dowe, 145 F.3d 653).

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In hopes of saving his claim, Hodges points to his allegation of “Lt. Creighton’s 

negative attitude towards” him. Opening Br. at 33. Even ignoring that Hodges’s complaint 

alleges that said “negative attitude” started after the denial of his application, he cites no 

authority for his proposition that a “negative attitude” proves causation. And, in reality, it 

may prove the opposite. To state a claim, Hodges must allege that Lt. Creighton took 

adverse action because of protected speech. But Hodges’s “negative attitude” argument 

actually provides an alternative reason for why Lt. Creighton might have denied Hodges’s 

request—she just didn’t like him. This might be grounds for a formal grievance or 

reprimand, but absent some showing that she didn’t like him because of his speech, it 

doesn’t establish causation.

All this is to say that the only allegations in the complaint that go to causation are 

Hodges’s allegations of temporal proximity. But those alone are insufficient to plausibly 

allege causation. So the district court was correct to dismiss Hodges’s claim.17

17 Below, Hodges also sought to supplement his complaint by alleging new instances 

of retaliation that came after he filed his § 1983 action. Without explanation, the district 

court declined to consider Hodges’s new allegations, which we construe as motions to file 

supplemental pleadings. See Fed. R. Civ. P. 15(d). Leave to supplement “should be freely 

granted, and should be denied only where ‘good reason exists . . . , such as prejudice to the 

defendants.’” Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. 2002) (quoting Walker v. 

United Parcel Serv., 240 F.3d 1268, 1278 (10th Cir. 2001)). Accordingly, “outright refusal 

to grant the leave without any justifying reason appearing for the denial is not an exercise 

of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the 

Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962).

That said, the refusal to consider Hodges’s supplemental allegations was harmless. 

See 28 U.S.C. § 2111 (“[T]he court shall give judgment after an examination of the record 

without regard to errors or defects which do not affect the substantial rights of the parties.”). 

Hodges’s supplemental allegations sought to assert two new factual scenarios involving 

First Amendment retaliation. The first involves an unnamed staff member opening 

(Continued)

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* * *

The sum of the above is that Hodges failed to allege facts sufficient to state any

viable claim. But determining that we will affirm the district court’s dismissal leaves us 

with Hodges’s final argument: that the district court erred by dismissing his complaint 

with prejudice. In support, Hodges correctly points out that we’ve suggested that

“dismissal should generally be without prejudice” when “the district court neither gave [the 

pro se plaintiff] the opportunity to amend nor . . . engage[d] in any discussion as to why 

amendment would be futile.” King v. Rubenstein, 825 F.3d 206, 225 (4th Cir. 2016). And 

Defendants, for their part, offer no rebuttal to this argument. So we will “modify the 

judgment only to the extent that the dismissal be without prejudice.” Thomas v. Salvation 

Army S. Territory, 841 F.3d 632, 642 (4th Cir. 2016). As a result, the district court’s order 

is

AFFIRMED AS MODIFIED.

Hodges’s mail. But that does not allege that Defendants retaliated against him; it alleges 

the unnamed staff member did. Suarez Corp. Indus., 202 F.3d at 686. The second

allegation, which involves Lt. Creighton preventing another officer from writing Hodges a 

recommendation letter and removing him from Work Force, fails for the same reasons as 

Hodges’s original retaliation claim—he doesn’t sufficiently allege causation. 

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