UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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 
2

Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, 

Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
3

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
4

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.
5

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).
6

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)
7

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.
8

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-cv01692 (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 

 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)
9

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.
10

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 
11

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.
12

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).