James Roudabush, Jr. v. F. Milano , 714 F. App'x 208 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6278
JAMES LESTER ROUDABUSH, JR.,
Plaintiff – Appellant,
v.
F. MILANO, Captain; RICHARDSON; RYAN STERN; D. LAWHORNE, Sheriff;
GRAHAM, Counselor; MS. HILTON, CDUSM; STEARNS, Chief,
Defendants – Appellees,
and
C. M. HILTON, U.S.D.J.; R. B. SMITH,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:13-cv-00676-AWA-LRL)
Argued: October 24, 2017 Decided: November 27, 2017
Before NIEMEYER, TRAXLER, and WYNN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
ARGUED: Kelsey Mellan, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant. Alexander Francuzenko, COOK CRAIG
& FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees. ON BRIEF: John J.
Korzen, Director, Matthew D. Cloutier, Third-Year Law Student, James Lathrop, Third-
Year Law Student, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
James Lester Roudabush, Jr., appeals the district court’s order dismissing his claims
under 42 U.S.C. § 1983, and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), against Appellees Captain F. Milano, Sergeant
Richardson, Deputy Ryan Stern, Sheriff D. Lawhorne, Counselor Graham, Ms. Hilton of
the United States Marshals Service, and Chief Stearns. The district court granted motions
to dismiss filed by defendants Milano, Lawhorne, Richardson, Graham, and Deputy Stearn,
under Federal Rule of Civil Procedure 12(b)(6), and dismissed Roudabush’s claims against
Hilton and Chief Stearns pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). We affirm in part,
reverse in part, and remand to the district court for further proceedings.
I.
Roudabush is an inmate housed at the Alexandria Detention Center (“ADC”) in
Virginia. He brought this pro se complaint, alleging, inter alia, that the defendants
discriminated against him on the basis of his race, engaged in a civil conspiracy to place
him in administrative segregation when he complained about his disparate treatment, and
denied him procedural due process by placing him in protective custody in violation of
ADC policy without a hearing. *
*
Roudabush originally filed a pro se appeal of the district court’s decisions. We
appointed counsel to represent him, received additional briefing on the equal protection,
civil conspiracy, and due process claims from counsel, and scheduled the case for oral
argument.
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Roudabush’s complaint generally alleges widespread racial discrimination at the
ADC against white and Hispanic inmates and in favor of black inmates. According to
Roudabush, black inmates are allowed to have outside food and extra food from the prison
kitchen, are given preferential status on the trustee list, and are given extra and better
recreational times. In particular, Roudabush alleges that defendant Graham assigns white
and Hispanic inmates to recreation breaks between 2 a.m. and 4 a.m., and gives black
inmates recreation time when they want it and with the inmates of their choice. Roudabush
alleges that black inmates are also allowed to choose and change their cells at will and to
have private cells, whereas white inmates are not allowed to choose their cells, and no
white inmates have private cells except when on lockdown. For example, Roudabush
alleges that on September 4, 2013, he was arbitrarily moved from his assigned cell, where
he could see the television, to an inferior and unclean cell where he could not see the
television, because a black inmate wanted his cell. Roudabush alleges that he complained
to the defendants about this disparate treatment beginning in April 2013, but to no avail.
He alleges that on September 22, 2013, several black inmates began threatening him and
that, on September 26, 2013, he was transferred from his unit at ADC to protective custody,
in retaliation for his complaints of discrimination.
II.
We review a district court’s grant of a motion to dismiss de novo. See King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). When evaluating the complaint, the court
must construe all factual allegations in the light most favorable to the plaintiff. See Smith
v. Smith, 589 F.3d 736, 738 (4th Cir. 2009). In addition, when a plaintiff files a complaint
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pro se, the court must construe the pleading requirements liberally. See id. For a complaint
to survive a Rule 12(b)(6) motion, its “‘[f]actual allegations must be enough to raise a right
to relief above the speculative level’—that is, the complaint must contain ‘enough facts to
state a claim for relief that is plausible on its face.’” King, 825 F.3d at 214 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)); see also De’lonta v. Johnson, 708
F.3d 520, 524 (4th Cir. 2013) (explaining that standards for dismissal under § 1915A for
failure to state a claim are the same as for Fed. R. Civ. P. 12(b)(6)). “Bare legal conclusions
‘are not entitled to the assumption of truth’ and are insufficient to state a claim.” King, 825
F.3d at 214 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To succeed on his equal protection claim, Roudabush must first allege facts showing
that he was treated differently from others who were similarly situated and that such
unequal treatment resulted from intentional or purposeful discrimination. See Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002). Once “he makes this showing, the court
proceeds to determine whether the disparity in treatment can be justified under the requisite
level of scrutiny.” Id. at 731 (internal quotation marks omitted).
The district court rejected Roudabush’s racial discrimination claim, stating that
Roudabush’s “only assertion that relates to the treatment that [he] himself received is that
he was moved from his cell, where the television was visible, to a corner cell, where the
television was not visible,” so that it could be “given to a black inmate who wanted to be
able to view the television.” J.A. 80. As noted above, however, this was not Roudabush’s
only complaint of disparate treatment. Roudabush also included several allegations that
black inmates, but not white inmates, were allowed to pick and choose their cells, that
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white and Hispanic inmates were provided with severely restricted recreation times in
comparison to the black inmates, and that black inmates alone were allowed outside food
and extra food. We are satisfied that these allegations, liberally construed, are sufficient to
allege that the denial of privileges to white inmates, including Roudabush, were racially
motivated, so as to “nudge [his equal protection claim] across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570. Accordingly, we hold that the district court erred
in dismissing Roudabush’s equal protection claim.
With regard to Roudabush’s appeal of the district court’s dismissal of his remaining
claims, including his claims of civil conspiracy and for violation of his due process rights,
we affirm the district court’s dismissal. Roudabush’s conclusory allegations offered in
support of these claims were plainly insufficient to survive the defendants’ motions to
dismiss. See King, 825 F.3d at 214; Iqbal, 556 U.S. at 679.
III.
Accordingly, we reverse the district court’s dismissal of Roudabush’s equal
protection claim and remand for further proceedings. We affirm the district court’s
dismissal of Roudabush’s remaining claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
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