                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 03-2155



TERRY W. GIVENS,

                                              Plaintiff - Appellant,


           versus

JOEY O’QUINN; R. BROOKS; BILL REYNOLDS; MIKE
MULLINS; CHARLES JANEWAY; FRANK WILKINS; TIM
YATES;   STAN  YOUNG;  RICHARD   YOUNG;  RON
ANGELONE,

                                             Defendants - Appellees,


           and

JERRY O’QUINN,

                                                           Defendant.


Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, District
Judge. (CA-02-214-2)


Argued:   September 28, 2004                 Decided:   March 3, 2005


Before WILKINS, Chief Judge, and LUTTIG and GREGORY, Circuit
Judges.


Affirmed in part and reversed in part by unpublished per curiam
opinion. Judge Luttig wrote a separate opinion concurring in the
judgment. Chief Judge Wilkins wrote a separate opinion concurring
in the judgment in part and dissenting in part.     Judge Gregory
wrote a separate opinion concurring in the judgment in part and
dissenting in part.


ARGUED: Daniel Robert Bieger, COPELAND & BIEGER, P.C., Abingdon,
Virginia, for Appellant.      Martha Murphey Parrish, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees R. Brooks, Bill Reynolds, Frank
Wilkins, Tim Yates, Stan Young, Richard Young, and Ron Angelone;
Harold Ronnie Montgomery, Jonesville, Virginia, for Appellee
Charles Janeway. ON BRIEF: Hilary K. Johnson, Abingdon, Virginia,
for Appellant. William W. Muse, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees R. Brooks, Bill Reynolds, Frank Wilkins, Tim Yates, Stan
Young, Richard Young, and Ron Angelone.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM, announcing the judgment of the court:

     The judgment of the district court is affirmed in part and

reversed in part.   The dismissal of counts I, II, III, and IV of

the second amended complaint is reversed, and those claims are

remanded to the district court for further proceedings.       The

dismissal of the retaliation claim set forth in the third amended

complaint is affirmed.

     This constitutes the opinion of the court.




                                3
LUTTIG, Circuit Judge, concurring in the judgment:

       If, as we held in Rossignol v. Voorhaar, 316 F.3d 516 (4th

Cir. 2003), it constituted state action for the deputy sheriffs to

purchase the newspapers at issue in that case, then I believe it is

inescapable that the conduct of defendants in this case constituted

state action.    No less so here than in Rossignol was the alleged

constitutional   injury   facilitated   by   the   defendants’   official

status.   And, no less so here than in that case did the defendants’

conduct “arise out of public, not personal, circumstances.” Id. at

524.    For this reason and this reason alone, I concur in the

judgment of reversal as to appellant’s claim that he was deprived

of his constitutional rights under color of state law.

       For the reasons stated by the district court, I would affirm

its judgment as to appellant’s retaliation claim.




                                  4
WILKINS, Chief Judge, concurring in the judgment in part and
dissenting in part:

     Terry W. Givens, an employee of the Virginia Department of

Corrections (DOC), was assaulted by two of his co-workers, Joey

O’Quinn and Mike Mullins.     He thereafter brought this action

pursuant to 42 U.S.C.A. § 1983 (West 2003), alleging that the

assault violated his constitutional rights in various ways.       He

also claimed that he was retaliated against for filing a grievance

concerning the assault, in violation of his First Amendment rights.

The district court dismissed all of these claims pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, concluding as a

matter of law that no state action was involved in the assault.    I

would affirm the judgment of the district court.



                                I.

     The facts, viewed in the light most favorable to Givens, are

as follows.   At the time of the assault, Givens was employed as a

corrections officer at Wallens Ridge, a supermaximum security

prison.   At approximately 3:00 a.m. on December 22, 2000, Givens

entered an office during his shift to retrieve some paperwork.    As

he entered the office, fellow corrections officers O’Quinn and

Mullins grabbed Givens and took him to an equipment room.    Givens

attempted to escape, but the employee who controlled the electronic

door from a central workstation had been instructed not to open it.

O’Quinn and Mullins put Givens in handcuffs and leg irons.    They

                                 5
then pulled down his pants, taped his genitals to his leg with duct

tape, and photographed him. During the assault, Lieutenant Charles

Janeway--O’Quinn   and   Mullins’   supervisor   and   Givens’   indirect

supervisor--entered the room and observed what was happening but

took no action.

     O’Quinn and Mullins showed the photographs they had taken to

other employees at Wallens Ridge.       When the then-director of the

DOC, Ronald Angelone, was informed of the occurrence, he ordered

the pictures destroyed.     Other people, including Stan Young (S.

Young), warden of Wallens Ridge, and Richard Young (R. Young),

regional director of the DOC, were involved in the cover-up.

     At the time of the assault, Angelone, S. Young, and R. Young

were aware that other assaults had occurred at Wallens Ridge,

including (1) retaliating against a female employee who filed

sexual harassment charges against the officer or officers who

videotaped her using the restroom, (2) stripping and tying to a

flagpole a corrections officer who was preparing to take military

leave, and (3) forcing a corrections officer to perform a strip-

tease under threat of termination.      Victims of such assaults were

aware that if they spoke out they would suffer retaliation.

     Givens filed an incident report complaining about the assault

with Major Tim Yates.    Thereafter, Yates began an investigation of

Givens in retaliation for Givens’ filing of the report.          The goal

of this investigation was to find a basis for terminating him.


                                    6
Since he filed the incident report, Givens also has been denied

training opportunities, has been instructed to avoid contact with

a female officer who filed a sexual harassment complaint against

him,1 and has lost time off as a result of changes in shift

assignments.

     In December 2002, Givens filed this action, naming O’Quinn,

Mullins, Angelone, Janeway, S. Young, R. Young, Yates, and the

female officer (collectively, “Appellees”) as defendants.              His

second   amended   complaint   alleged   three   claims   under   §   1983:

unlawful seizure in violation of the Fourth Amendment, violation of

procedural due process, and violation of substantive due process.

It also alleged several state law claims.

     Appellees moved to dismiss for failure to state a claim upon

which relief could be granted, see Fed. R. Civ. P. 12(b)(6).            The

district court dismissed the federal claims on the basis that

O’Quinn and Mullins were not acting under color of state law when

they assaulted Givens.    Having dismissed the federal claims, the

district court declined to exercise supplemental jurisdiction over

several state law claims asserted by Givens, and dismissed them

without prejudice.2   See 28 U.S.C.A. § 1367(c)(3) (West 1993).          In

the course of its ruling, the district court noted that the



     1
      This complaint was found to be unsubstantiated.
     2
      Givens does not appeal this aspect of the order of the
district court.

                                   7
complaint did not contain a claim for retaliation and that it

seemed unlikely, in light of its holding that there had been no

state action, that Givens could allege a valid retaliation claim.

Nevertheless, the court allowed him ten days to file a third

amended complaint stating a claim for retaliation.

     After Givens filed his third amended complaint, Appellees

again moved to dismiss, arguing that Givens had failed to state a

claim for retaliation.       Appellees argued, in relevant part, that

Givens had not alleged the violation of a constitutional right

because the assault had not been committed under color of state

law, and thus his grievance was not a matter of public concern, as

necessary for a retaliation claim under the First Amendment.             The

district court granted the motion to dismiss, stating simply that

it agreed with Appellees that “based on [Givens’] allegations,

there   has   been   no   actionable   retaliation     for   exercise   of   a

protected constitutional right.”           J.A. 159.



                                   II.

     On de novo review of a dismissal pursuant to Rule 12(b)(6), we

accept as true the facts pleaded in the complaint, viewing those

facts and all reasonable inferences from them in the light most

favorable to Givens.       See Mylan Labs., Inc. v. Matkari, 7 F.3d

1130, 1134 (4th Cir. 1993).     Dismissal for failure to state a claim

is proper “only if it is clear that no relief could be granted


                                       8
under any set of facts that could be proved consistent with the

allegations.”     Hishon v. King & Spalding, 467 U.S. 69, 73 (1984);

see Matkari, 7 F.3d at 1134 n.4 (explaining that we may affirm only

if “it appears to a certainty that the plaintiff would be entitled

to no relief under any state of facts which could be proved in

support of his claim” (internal quotation marks omitted)).

        Rule 8 of the Federal Rules of Civil Procedure establishes a

standard of notice pleading which requires us to construe Givens’

complaint so as to do “substantial justice.”           Fed. R. Civ. P. 8(f).

See generally Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14

(2002) (discussing pleading standard of Rule 8).            But, “a court’s

duty to liberally construe a plaintiff’s complaint in the face of

a motion to dismiss is not the equivalent of a duty to re-write

it.”    Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir.

1993); see Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th

Cir. 1998) (“[N]otice pleading requires generosity in interpreting

a   plaintiff’s   complaint.    But       generosity   is   not    fantasy.”).

Similarly, the obligation to view the facts in the light most

favorable to the plaintiff does not require the court to accept

legal      conclusions,   “unwarranted        inferences,         unreasonable

conclusions, or arguments.”    E. Shore Mkts., Inc. v. J.D. Assocs.

Ltd., 213 F.3d 175, 180 (4th Cir. 2000).          And, while Rule 8 does

not require a plaintiff to “expound the facts, a plaintiff who does

so is bound by such exposition.”      Bender, 159 F.3d at 192.         We thus


                                      9
are not bound to accept an inference drawn by the plaintiff when

that inference is not supported by the facts pleaded in the

complaint.   See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002).

     My colleagues and I agree that Givens’ constitutional claims

relating to the assault depend upon whether the facts pleaded by

Givens, if proved, would establish that O’Quinn and Mullins were

acting under color of state law.   See ante, at 4; post, at 28; Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).   “Like

the state-action requirement of the Fourteenth Amendment, the

under-color-of-state-law element of § 1983 excludes from its reach

merely private conduct, no matter how discriminatory or wrongful.”

Am. Mfrs. Mut. Ins., 526 U.S. at 50 (internal quotation marks

omitted).

     The “under color of law” requirement of § 1983 is coextensive

with the “state action” requirement of the Fourteenth Amendment.

See Lugar v. Edmondson Oil Co., 457 U.S. 922, 928-29, 935 (1982).

In discerning the line between state action and private action,

     [t]he judicial obligation is not only to preserve an area
     of individual freedom by limiting the reach of federal
     law and avoid the imposition of responsibility on a State
     for conduct it could not control, but also to assure that
     constitutional standards are invoked when it can be said
     that the State is responsible for the specific conduct of
     which the plaintiff complains.

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.

288, 295 (2001) (internal quotation marks, citation, & alterations


                                10
omitted).   State action may be found only if there is a sufficient

nexus between the challenged conduct and the state “that seemingly

private behavior may be fairly treated as that of the State

itself.” Id. (internal quotation marks omitted). The existence of

this nexus “is a matter of normative judgment, and the criteria

lack rigid simplicity.”   Id.; see Rossignol v. Voorhaar, 316 F.3d

516, 523 (4th Cir. 2003) (noting that “[t]here is no specific

formula for defining state action under this standard” (internal

quotation marks omitted)).   The determination is to be made based

on the totality of the circumstances.   See Rossignol, 316 F.3d at

523 n.1.

     An actor’s conduct is generally attributable to the state when

it “occurs in the course of performing an actual or apparent duty

of his office, or [when] the conduct is such that the actor could

not have behaved in that way but for the authority of his office.”

Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995); see West v.

Atkins, 487 U.S. 42, 49 (1988) (“The traditional definition of

acting under color of state law requires that the defendant in a

§ 1983 action have exercised power possessed by virtue of state law

and made possible only because the wrongdoer is clothed with the

authority of state law.” (internal quotation marks omitted)).

Thus, a key consideration in determining whether a law enforcement

officer’s actions are attributable to the state is whether the

“defendant’s purportedly private actions are linked to events which


                                11
arose out of his official status.”    Rossignol, 316 F.3d at 524.   In

other words, “whether a police officer is acting under color of

state law turns on the nature and circumstances of the officer’s

conduct and the relationship of that conduct to the performance of

his official duties.”   Martinez, 54 F.3d at 986.



                                 A.

      Judge Gregory tries mightily to force this case into the mold

of Rossignol.3   This attempt fails, however.     In Rossignol, the

defendants were sheriff’s deputies who conducted a countywide mass

purchase of the plaintiff’s newspaper.    See Rossignol, 316 F.3d at

519-20. A panel of this court concluded that the deputies’ actions

were attributable to the state because the deputies were motivated

to suppress criticism of their official conduct.     See id. at 524-

25.   Here, since Givens’ complaint is devoid of any allegation of

a similar motivation, my colleague creates out of whole cloth a

reasonable inference that O’Quinn and Mullins intended to further

a purported state interest in a fearful workforce.      See post, at

33.   Such speculation has no place in our review of the decision of

the district court.




      3
      Judge Luttig, concurring in the judgment, appears to be of
the view that Rossignol so lowered the bar for finding state action
that extensive analysis is unnecessary. As should be clear from
the discussion in the text, I disagree with this assessment.

                                 12
     My   colleague      also   takes    care   to    note    that    the    officers

involved in Rossignol were “off-duty and out of uniform” at the

time of the mass purchase.        Post, at 29.       While this is true, it is

nevertheless quite clear that the officers carried an aura of

authority that was critical to the finding of state action. First,

there were in fact physical indications of the officers’ status:

one officer was wearing a sweatshirt with the word “Sheriff”

emblazoned    on   it,    and   two   others    openly       wore    their    service

revolvers.     See Rossignol, 316 F.3d at 520.                  Additionally, it

appears that the officers used their well-known status as police

officers to intimidate employees who might otherwise have opposed

the mass purchase.         See id. at 520-21 (recounting one clerk’s

testimony that the officers “had a real intimidating attitude, and

made it real apparent that they could make my life here a living

hell”; noting that several employees knew that the mass purchase

was conducted by police officers (internal quotation marks &

alterations   omitted)).         These    facts      were    significant      to   the

conclusion of the panel that the officers’ conduct was state

action.   See id. at 526 (explaining that “the deputies’ identities

as state officers played a role at several points during the

seizure” and noting the undoubted “effect of a police presence on

a store owner or clerk”).

     Here, in contrast, there is no indication whatsoever that

Givens perceived O’Quinn and Mullins to have any sort of authority


                                         13
over him.    Although the point is not explicit, I understand my

colleague to be of the view that the perceived authority of an out-

of-uniform    law    enforcement       officer     vis-à-vis     a    civilian   is

comparable to that of an on-duty, uniformed officer vis-à-vis a

co-worker.       There        simply   is     no   reason   to       equate   those

circumstances.      See Martinez, 54 F.3d at 988 n.6 (explaining that

although a civilian is likely to be intimidated by the trappings of

official status, “when the victim is himself a fellow officer ...

it   can   generally     be    assumed      that   the   aggressor’s      official

trappings, without more, will not lead the victim to believe that

the aggressor is acting with the imprimatur of the state”); Hughes

v. Halifax County Sch. Bd., 855 F.2d 183, 186-87 (4th Cir. 1988)

(concluding that assault on county employee by co-workers was not

committed under color of state law because assailants’ positions

gave them no power over victim).



                                         B.

     I am also unpersuaded by Judge Gregory’s heavy reliance on

Givens’ passing use of the term “hazing ritual” to describe the

assault and other acts allegedly perpetrated against DOC employees.

My colleague adopts a state law definition of the term “hazing” and

asserts that “we can reasonably infer from Givens’s description of

the incident as a ‘hazing’ that he was alleging that defendants’

acts were conducted as a ritual of initiation or in connection with


                                         14
a condition of continued employment at Wallens Ridge.”         Post, at

31.   Givens’ use of the term “hazing ritual” simply will not bear

the weight my colleague attributes to it.         Indeed, the facts pled

by Givens actually negate the existence of any common circumstance

that might support an inference that the assault on Givens was part

of    a   commonly    performed    “hazing   ritual.”4   See   Webster’s

Encyclopedic Unabridged Dictionary of the English Language 1661

(2001) (defining “ritual” in relevant part as “any practice or

pattern of behavior regularly performed in a set manner”).

      The first incident alleged by Givens to support the “hazing

ritual” claim concerns a female employee who was retaliated against

for filing a sexual harassment complaint. Nothing in the complaint

indicates that the assault against Givens was, or even might have

been, a retaliatory act.           The second alleged incident was an

assault committed upon an employee who was about to depart for

military service.      Again, Givens has not pled any facts suggesting

a commonality between this incident and the assault on him by

O’Quinn and Mullins.       Finally, Givens alleges that a corrections

officer was forced, under threat of termination, to perform a

“strip tease.”       J.A. 118.   However, Givens has not alleged, and it

would be speculative to suppose, that he submitted to the assault



      4
      Givens admitted as much during the hearing concerning the
motion to dismiss, acknowledging that the term “hazing” was perhaps
the wrong word to describe the assaults on Givens and other
employees. See J.A. 87.

                                      15
by O’Quinn and Mullins under threat of termination.                      (In fact,

Givens has alleged that he struggled to free himself.)               In light of

the significant differences between the other incidents themselves,

and between those incidents and the assault on Givens, it is

entirely unreasonable to infer that they were part of “organized

ritualistic hazing.”         Post, at 32.

      Setting   the    other    incidents    aside,   I    cannot    endorse    my

colleague’s conclusion that the facts pled by Givens establish that

the assault “arose out of [O’Quinn and Mullins’] motivation to

initiate Givens into his job at Wallens Ridge.”                  Post, at 31-32.

At no time in these proceedings has Givens ever asserted such a

claim.   And, the facts pled by Givens indicated that he had been a

DOC employee for at least four years, and may have been at Wallens

Ridge for a year, when the assault took place.              Givens’ complaint

states   that    he    “has    been   employed     with    the    Department    of

Corrections for approximately six years, with the last two-three

years at Wallens Ridge.”        J.A. 26.     It is not clear to me whether

this statement refers to Givens’ employment status at the time the

complaint was filed in December 2002 or at the time of the incident

in December 2000.       If the latter, my colleague’s conclusion that

the   assault    was    an    “initiation”    of    some    sort    is    patently

unsupportable.    Even if the former, Givens’ statement that he had

been at Wallens Ridge “two-three years” provides no non-speculative




                                       16
basis for a conclusion that the assault was an initiation performed

upon a new co-worker.



                                  C.

     Judge Gregory also finds support for his view that there is

state action in the fact that O’Quinn and Mullins “used the

prison’s electronic locking mechanism” during the assault.       Post,

at 31.    Givens likewise points to this fact and relies on DeShaney

v. Winnebago County Department of Social Services, 489 U.S. 189

(1989).    In DeShaney, the Supreme Court held that the Due Process

Clause does not require the state to protect its citizens from

violence by private actors, see id. at 195-97, but noted that the

state does have a duty imposed by the Due Process Clause to protect

persons who are involuntarily in its custody, see id. at 198-99.

The Court stated that due process protections might also apply to

an individual who is in “a situation sufficiently analogous to

incarceration    or   institutionalization   to   give   rise   to   an

affirmative duty to protect.”     Id. at 201 n.9.    Relying on this

language, Givens argues that the assault occurred while he was in

the functional custody of the state because O’Quinn and Mullins

were aided by the physical structure of the prison, namely, the

remote-locking door to the storage room.     See Martinez, 54 F.3d at

984 (using the term “functional custody” to characterize situations

analogous to incarceration or institutionalization).


                                  17
     The First Circuit addressed a similar issue in Martinez, a

case discussed at length by the district court and the parties but

not cited by my colleague.         In Martinez, the plaintiff police

officer was harassed by a fellow officer while both were on duty at

the police station.     See id. at 982.        The incident culminated in

the defendant accidentally shooting the plaintiff with his service

revolver.      See id. at 982-83.           The court concluded that the

shooting did not occur under color of state law because it arose

from “a singularly personal frolic ....              Though on duty and in

uniform, [the defendant’s] status as a police officer simply did

not enter into his benighted harassment of his fellow officer.”

Id. at 987.5

     The    Martinez   panel   noted    that   one   could   argue   that   the

shooting was made possible by the defendant’s possession of a



     5
      United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991),
provides a useful contrast to Martinez. Tarpley, a deputy sheriff,
lured his wife’s lover to his house and assaulted him:

     [Tarpley] inserted his service pistol in [the victim’s]
     mouth. He told [the victim] that he was a sergeant on
     [sic] the police department, that he would and should
     kill [the victim], and that he could get away with it
     because he was a cop. He repeated “I’ll kill you. I’m
     a cop. I can.”

Tarpley, 945 F.2d at 808.     The Fifth Circuit found these facts
sufficient to support a jury finding that Tarpley acted under color
of law for purposes of a conviction under 18 U.S.C.A. §§ 241, 242
(West 2000). The court noted that Tarpley “claimed to have special
authority for his actions by virtue of his official status.... The
presence of police and the air of official authority pervaded the
entire incident.” Tarpley, 945 F.2d at 809.

                                       18
service revolver.   See id. at 987.   The court concluded, however,

that mere facilitation of an assault by the possession of a state-

issued firearm was not itself enough to create state action.   See

id. at 987-88.   This logic applies to Givens’ “functional custody”

argument.   It is true that O’Quinn and Mullins were aided in their

assault by the physical construct of the prison, including the

remote-locking mechanism.    This fact is not sufficient to find

state action, however, because it is in no way linked to the

authority conferred on O’Quinn and Mullins as law enforcement

officers.   See West, 487 U.S. at 49 (noting that finding of state

action requires action “made possible only because the wrongdoer is

clothed with the authority of state law” (emphasis added) (internal

quotation marks omitted)); Barna v. City of Perth Amboy, 42 F.3d

809, 818 (3d Cir. 1994) (holding that “the unauthorized use of a

police-issue nightstick is simply not enough to color [a] clearly

personal family dispute with the imprimatur of state authority”);

Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. Unit A Jan.

1981) (per curiam) (holding that an assault by an on-duty police

officer on police station premises was not state action because

“the altercation arose out of an argument over family and political

matters and ... [the plaintiff] was neither arrested nor threatened

with arrest”).




                                 19
     In sum, I find no basis upon which to conclude that the

assault on Givens was committed under color of state law.         I

therefore would affirm the district court.6


                                III.

     I would likewise affirm the dismissal of Givens’ retaliation

claim.7    In order to state a valid claim for retaliation, Givens

was required to allege facts indicating that (1) he engaged in

protected speech, (2) he suffered an adverse employment action, and

(3) his speech was a substantial or motivating factor in the

adverse employment action.    See Thomas v. City of Beaverton, 379

F.3d 802, 808 (9th Cir. 2004).        In order to satisfy the first

element, Givens’ grievance must have related to a matter of public

concern.    See Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th

Cir. 1990).



     6
      Givens also asserted a claim for supervisory liability
against Lieutenant Charles Janeway and other supervisors.       See
Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984) (noting that a
supervisor may be held liable for constitutional injuries inflicted
by   subordinates   when   “supervisory   indifference   or   tacit
authorization of subordinates’ misconduct” is “a causative factor
in the constitutional injuries they inflict” on others). In the
absence of a constitutional violation by O’Quinn and Mullins, this
claim necessarily fails.
     7
      Judge Luttig states that he agrees with Judge Gregory that
there is state action but that he would affirm the dismissal of the
retaliation claim “[f]or the reasons stated by the district court.”
Ante, at 4. As I have already noted, however, the rejection of the
retaliation claim by the district court rested at least in part on
its conclusion that the assault was not committed under color of
state law.

                                 20
     To determine whether speech involves a matter of public

concern, we examine the content, form, and context of the speech at

issue in light of the entire record.         See Connick v. Myers, 461

U.S. 138, 147-48 (1983).         Speech involves a matter of public

concern when it relates to an issue “of political, social, or other

concern to a community.”    Id. at 146.      The public-concern inquiry

centers on whether “the public or the community is likely to be

truly concerned with or interested in the particular expression.”

Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988)

(internal quotation marks omitted).

     Here,   Givens’   speech    consisted   of   an   internal   grievance

complaining about the assault committed by O’Quinn and Mullins.

“[I]t is settled that a public employee’s expression of grievances

concerning his own employment is not a matter of public concern.”

Huang, 902 F.2d at 1140.        Givens’ complaint about the assault is

undoubtedly quite important to him, but in the absence of any state

action during the assault, the fact that he was assaulted by fellow

employees on a personal frolic is not a matter of public concern.

See Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir.) (noting that

“complaints about conditions of employment ... are not matters of

public concern” (internal quotation marks omitted)), cert. denied,

125 S. Ct. 49, 68 (2004); cf. Robinson v. Balog, 160 F.3d 183, 189-

90 (4th Cir. 1998) (“Every public employee’s job by definition




                                    21
affects ‘the public,’ but every public employee’s grievance is not

thereby of public concern.”).


                                IV.

     For the reasons set forth above, I concur in the judgment in

part and dissent in part.




                                22
GREGORY, Circuit Judge, concurring in the judgment in part and
dissenting in part:

     This matter arises from a sexual assault during a “hazing

ritual” at Wallens Ridge State Prison.        Plaintiff Terry W. Givens,

(“Givens”) a state corrections officer, appeals from the district

court’s order dismissing, pursuant to Fed. R. Civ. P. 12(b)(6)

(“Rule 12(b)(6)”), his suit filed against several defendants.1

Givens alleges that defendants’ individual and collective conduct,

in committing a sexual assault and subsequent acts of retaliation,

violated his rights under 42 U.S.C. § 1983 (“§ 1983”) and Virginia

common law.    The district court held that the alleged hazing

incident did not constitute state action and as a matter of law,

Givens’s   retaliation   claim   was    not   actionable   under   §   1983.

Because we find that, at this stage of the proceedings, Givens has

made a colorable claim under § 1983, I concur in part; however, I

disagree with the dismissal of Givens’s retaliation claim.




     1
      Givens sued the following corrections officers, supervisors,
and administrators individually: Corrections Officer R. Brooks,
Sergeant Jerry O’Quinn, Sergeant Mike Mullins, Lieutenant Bill
Reynolds, Lieutenant Charles Janeway, Investigator Frank Wilkins,
Major Tim Yates, Warden Stan Young, Director Richard Young (Western
District Department of Corrections), and Director Ron Angelone
(Department of Corrections).

                                   23
                                   I.

     Terry W. Givens is a corrections officer at Wallens Ridge

State Prison (“Wallens Ridge”), a super-maximum security facility2

located in Wise County, Virginia.        Givens has been employed with

the Virginia Department of Corrections for approximately six years

with the last two or more years at Wallens Ridge.              The hazing

incident occurred on December 22, 2000, at approximately 3:00 a.m.,

during Givens’s 6:00 p.m. to 6:00 a.m. shift.           Givens entered the

office to review some paperwork.        Almost immediately, two fellow

employees at Wallens Ridge, Sergeant Jerry O’Quinn (“Sergeant

O’Quinn”) and Sergeant Mike Mullins (“Sergeant Mullins”), grabbed

Givens and took him by force from the office to an equipment room.

Sergeants “Mullins and O’Quinn and/or other defendants [gave] the

employee   stationed   at   Central     (which   work    station   controls

operation of the electronically controlled doors) instructions not

to open the exit door.”     J.A. 116-17.   Thus, Givens stated, he “had

no means to escape due to the electronic door and the instruction

given to the control panel operator not to open the door under any

circumstances.”   Id. at 117.



     2
      This super-maximum security prison is constructed such that
“no employee of the prison can move about the prison without heavy
metal electronic doors being opened by another employee who
operates the control panel. All electronic doors are placed within
short distances of each other; and one must be closed prior [to]
the next one being opened for passage by an employee.       No two
consecutive electronic doors are permitted to be opened at the same
time at any time.” J.A. 115.

                                   24
     Sergeants O’Quinn and Mullins handcuffed Givens and put leg

irons on his ankles.        They then pulled down Givens’s pants against

his will, took hold of his genitals and “duct taped” them to his

leg, and took photographs of him.3                 Captain Charles Janeway,

Givens’s    indirect      supervisor,      observed     the   hazing    incident,

including Givens’s protests and struggles, but did nothing to stop

the sexual assault nor did he report the actions of Sergeants

O’Quinn    and   Mullins    to   his    superiors.       According     to   Givens,

Sergeant O’Quinn and/or Sergeant Mullins showed the photographs of

him to an unknown number of Wallens Ridge employees.                         Givens

asserted that Ronald Angelone, Department of Corrections Director

(“Director Angelone”), initiated a “cover-up” of the incident by

ordering the photographs destroyed.              Givens further asserted that

Ronald    Young,   the     Department    of    Corrections    Western       Regional

Director (“Director R. Young”), and Warden Stan Young, acted in

furtherance of the “cover-up.”

     Givens      filed    this   lawsuit      against   defendants     in    federal

district court.          Defendants moved pursuant to Rule 12(b)(6) to

dismiss Givens’s Second Amended Complaint for failure to state a

claim.    Givens’s Second Amended Complaint, similar to his previous



     3
      Givens’s complaint states that O’Quinn and Mullins were
Sergeants, thus defendants were presumably senior to Givens, who is
described as a corrections officer -- without rank. This simple
fact undermines Judge Wilkins’s far reaching conclusion that Givens
did not perceive defendants to have authority over him. See ante
at 9.

                                         25
complaints, alleged he was subjected to a hazing incident by fellow

corrections officers.        Specifically, he alleged that defendants

violated § 1983 by depriving him of his Fourth Amendment right

against seizure and his Fourteenth Amendment right to due process.

In addition, Givens asserted that Director Angelone, Director R.

Young, and Warden Stan Young were also liable under § 1983 for the

hazing incident. Givens also sought relief for violations of state

tort law.

     Defendants admitted that the hazing incident occurred and that

the officers involved had been disciplined for their private acts;

however, they asserted that Givens could not establish a § 1983

claim because there was neither state action nor was there any

conduct under color of state law.               The district court granted

defendants’ Rule 12(b)(6) motion and dismissed all of Givens’s

claims   in   his   Second   Amended    Complaint,    except   a   claim   for

compensatory and punitive damages.          The district court then granted

him leave to file a third amended complaint solely to set forth his

retaliation claim against certain defendants.

     In Givens’s Third Amended Complaint, he alleged that defendants

retaliated against him for filing a report of the sexual assault and

complaining to management about other “hazing rituals”             that have

occurred    at   Wallens   Ridge.      Givens    asserted   that   defendants

retaliated by conducting unfounded investigations and fabricating

charges against him, in violation of § 1983.                Defendants filed


                                       26
motions to dismiss Givens’s Third Amended Complaint for failure to

state a claim.   The district court held that there was no actionable

retaliation for exercise of a protected constitutional right and

dismissed Givens’s Third Amended Complaint.     Givens now files this

appeal.



                                 II.

     This court reviews a Rule 12(b)(6) dismissal de novo.        See

Stuart Circle Hospital Corp. v. Aetna Health Management, 995 F.2d

500 (4th Cir. 1993).   As required, “we assume the facts alleged in

the relevant pleadings to be true, and we draw all reasonable

inferences therefrom.”    Volvo Constr. Equip. N. Am., Inc. v. CLM

Equip. Co., 386 F.3d 581, 591 (4th Cir. 2004).        A Rule 12(b)(6)

motion to dismiss tests the sufficiency of a complaint, it does not

resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses.   Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992).     Such motions “should be granted

only in very limited circumstances.” Rogers v. Jefferson-Pilot Life

Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989).        Indeed, “[a] Rule

12(b)(6) motion to dismiss should not be granted unless it appears

certain that the plaintiff can prove no set of facts which would

support its claim and would entitle it to relief.”      T.G. Slater &

Son, Inc. v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836, 841

(4th Cir. 2004) (internal citations omitted).


                                  27
                                   III.

     On appeal, Givens contends that the district court erred in

finding that defendants’ hazing acts did not constitute conduct

under color of state law and that there had been no actionable

retaliation for exercise of a protected constitutional right.                 I

address these contentions in turn.



                                       A.

     To state a claim under § 1983, a plaintiff must allege that a

person   acting   under   color   of    state     law   deprived   him   of   a

constitutional right.     Dowe v. Total Action Against Poverty, 145

F.3d 653, 658 (4th Cir. 1998).         In this case, there is no question

that if defendants acted under color of state law, they violated

Givens’s constitutional rights.        As defendants aptly note in their

brief, a seizure triggering the Fourth Amendment’s protection occurs

only when governmental actors have, “by means of physical force or

show of authority . . . in some way restrained the liberty of a

citizen.”     Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968).                 It is

undisputed that defendants, Sergeants O’Quinn and Mullins, state

corrections   officers,    unlawfully       and   intentionally    restrained

Givens’s liberty.   Rucker v. Harford County, 946 F.2d 278, 281 (4th

Cir. 1991) (holding that a “seizure” under the Fourth Amendment

occurs when “one is the intended object of a physical restraint by




                                       28
an   agent   of   the    state”).     Here,    Givens   has   alleged   a   clear

deprivation of a constitutional right.

      The question in this appeal is whether Givens has pled facts,

which, if proved, would show the defendants to be state actors for

purposes of § 1983.       Recently, in Rossignol v. Voorhaar, this court

set forth the criteria for determining when purportedly private

conduct actually occurs “under color of state law.” 316 F.3d 516

(4th Cir. 2003).        We find our holding in Rossignol to be applicable

and controlling in this case.         In Rossignol, the Sheriff’s position

was an elected one, and the local paper was highly critical of the

incumbent Sheriff.        Id. at 519-20.       On election-day, several off-

duty and out of uniform County Sheriff deputies purchased every copy

of the critical newspaper.          Id.   In Rossignol we concluded that the

deputies’ actions in suppressing the distribution of the election-

day paper were perpetrated under color of state law.              Id. at 523.

     In Rossignol we recognized that § 1983 “includes within its

scope apparently private actions which have a ‘sufficiently close

nexus’ with the State to be ‘fairly treated as that of the State

itself.’”    Id. (quoting Jackson Metro. Edison Co., 419 U.S. 345, 351

(1974)).4    However, “the Supreme Court has not opted for an objective

or subjective test, but simply for a look at the totality of



      4
      Accordingly, “if a defendant’s conduct satisfies the state-
action requirement of the Fourteenth Amendment, it also constitutes
action ‘under color of state law’ for the purposes of § 1983.” Id.
at 523 n.1.

                                          29
circumstances that might bear on the question of the nexus between

the challenged action and the state.”           Id. at 523 n.1.      In reaching

our   decision   in   Rossignol,   we    concluded    that   “what    is   fairly

attributed to the State ‘is a matter of normative judgment, and the

criteria lack rigid simplicity.’”             Id. at 523 (internal citations

omitted).   Consequently, we held in Rossignol that “where the sole

intention of a public official is to suppress speech critical of his

conduct of official duties or fitness for public office, his actions

are more fairly attributable to the state.”            Id. at 524.     Further,

after looking to the totality of the circumstances, we found that the

deputies’ conduct bore a “sufficiently close nexus with the state to

be fairly treated” as actions under the color of state law or as

state action, pursuant to § 1983.            Id. at 525.

      Because this is a motion to dismiss, we look to Givens’s

complaints to determine if there is a “sufficiently close nexus”

between defendants’ actions and the state to allege that their

conduct was “under color of state law.”5           In his complaints, Givens

described the sexual assault incident in question as a “hazing

ritual.”    “Hazing” is defined as “to persecute or harass with

meaningless, difficult, or humiliating tasks; to initiate . . . by

exacting humiliating performances from or playing rough practical


      5
      The Federal Rules create a liberal system of “notice”
pleading in which a complaint is required by Fed. R. Civ. P. 8 to
be a short and plain statement of the case showing that the pleader
is entitled to relief.     Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993).

                                        30
jokes upon.”      The American Heritage Dictionary of the English

Language 605 (1976). Further, the Virginia Code defines “hazing” as:

       [T]o recklessly or intentionally endanger the health or
       safety of a student or students or to inflict bodily
       injury on a student or students in connection with or for
       the purpose of initiation, admission into or affiliation
       with or as a condition for continued membership in a
       club, organization, association, fraternity, sorority, or
       student body regardless of whether the student or
       students   so   endangered   or    injured   participated
       voluntarily in the relevant activity.

Va. Code § 18.2-56.6

       Although Wallens Ridge is not a college or university campus,

we can reasonably infer from Givens’s description of the incident

as a “hazing” that he was alleging that defendants’ acts were

conducted as a ritual of initiation or in connection with a

condition of continued employment at Wallens Ridge.            According to

Givens, defendants acted while on duty, in uniform, and used the

prison’s electronic locking mechanism to accomplish the hazing

ritual.     These facts alone are not dispositive, however they do

support his claim that defendants’ conduct was under color of state

law.       Rossignol,   316   F.3d   at    526   (“[Defendants’]   status   as

sheriff’s deputies enabled them to execute their scheme in a manner

that private citizens never could have.”).             Assuming as true all

facts pled by Givens, defendants’ acts of hazing arose out of their

motivation to initiate Givens into his job at Wallens Ridge.


       6
       In deciding a 12(b)(6) motion to dismiss, we may refer to
matters of public record. Hall v. Virginia, 385 F.3d 421, 424 n.3
(4th Cir. 2004).

                                      31
Rossignol, 316 F.3d at 523 (finding that the requisite nexus

between defendants’ public office and their actions during the

seizure arose initially out of their censorial motivation).

     Givens also alleged that defendants not only hazed him, but

“that similar actions as those taken against [him] had previously

been taken against other Wallens Ridge . . . employees,” with the

knowledge of prison officials.7      J.A. 28.   In addition, Givens

listed specific instances of hazing at Wallens Ridge: (1) a female

employee being videotaped while she was using the toilet; (2) a

corrections officer being stripped and tied naked to a flagpole

during the night shift and left for the day shift to see the

following morning; and (3) a corrections officer being forced to

perform a striptease and to dance naked for other officers. Givens

inclusion of these prior sexually deviant acts in his complaints

support his claim that organized ritualistic hazing was occurring

at Wallens Ridge.8


     7
      I disagree with Judge Wilkins’s assertion that Givens has   not
pled a commonality between the incidents.        Ante at 15.       My
colleague overlooks Givens’s allegation that his assault, like    the
previous incidents of assaults, were of a sexual nature           and
constituted “a kind of hazing ritual” at Wallens Ridge. J.A.      57,
118.
     8
      Judge Wilkins might make a good point, if we were reviewing
a grant of a motion for summary judgment, when he says that there
is a significant difference between this incident and the other
incidents, thus “it is entirely unreasonable to infer that they
were part of ‘organized ritualistic hazing.’”       Ante at 16.
However, because we are testing only the sufficiency of the
complaint, we are thus permitted to make a reasonable inference
from Givens’s use of the phrase “hazing ritual.”

                                32
      As in Rossignol, defendants’ actions in this case likely arose

“out of public, not personal, circumstances.” Rossignol, 316 F.3d

at 524.   Although initiating employees into their prison jobs may

not be an official duty, we held in Rossignol that when the

intention of the state official is to accomplish a state interest,

those acts are more fairly attributable to the state.              Id.     Given

the   facts   recited    by   Givens,9     we   can   reasonably   infer    that

defendants’ intention was to accomplish the state interest of

intimidating    and     controlling      employees    through   hazing     them,

insuring their loyalty and secrecy in the prison environment.

Givens’s allegations and the reasonable inferences drawn therefrom,

support the claim that there is a state prison ritual of subjecting

employees to intimidation, sexual assault, and other sexually

deviant behavior to either initiate them into their jobs or as a

condition of continued employment.              Thus, Givens’s complaint is

well within the boundaries of Rossignol.



                                      B.

      I dissent from the court’s decision to affirm the district

court’s dismissal of Givens’s retaliation claim.                Following the



      9
      I can not agree with Judge Wilkins’s implication that Givens,
in his complaint, must set out a full motive for defendants’
actions to survive a 12(b)(6) motion. See ante at 12. Rossignol,
was on appeal from a grant of a motion for summary judgment --
after full discovery; while Givens has been denied the benefit of
any discovery.

                                      33
hazing incident, Givens submitted an incident report to Major Tim

Yates    (“Major    Yates”),   a    Wallens    Ridge   supervisor.        Givens

contended that Major Yates almost immediately ordered an internal

investigation of Givens to develop a reason to justify terminating

him.     Givens claimed that defendants, Lieutenant Reynolds, Major

Tim Yates, and Warden Stan Young, instructed Corrections Officer R.

Brooks (“Brooks”), a female officer who reports to Givens, to make

false sexual assault charges against him.              According to Givens,

Brooks    continued   to   harass     him   and   bragged   that   “she   [was]

conducting her own personal investigation of him.”                    J.A. 121.

Givens    further   alleged    that   “all    defendants    engaged    in,   and

conspired to engage in, retaliation against him for filling out an

incident report and complaining to management about the violations

which had taken place against him.”           Id. at 126.

       As we concluded in American Civil Liberties Union, Inc. v.

Wicomico County, “retaliation by a public official for the exercise

of a constitutional right is actionable under 42 U.S.C. § 1983,

even if the act, when taken for different reasons, would have been

proper.” 999 F.2d 780, 785 (4th Cir. 1993).                 A plaintiff must

demonstrate that he suffered some sort of adversity in response to

his exercise of protected rights.             Huang v. Bd. of Governors of

Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990) (plaintiff

asserting First Amendment whistle-blower claim under § 1983 “must




                                       34
show that alleged retaliatory action deprived him of some valuable

benefit”).

       Generally, employees do not have the right under the First

Amendment     to    file    grievances        or   internal    incident   reports

concerning their own employment conditions.                 Huang, 902 F.2d 1134,

1140 (“[I]t is settled that a public employee’s expression of

grievances concerning his own employment is not a matter of public

concern.”).     However, a plaintiff asserting “whistle-blower” type

claims under § 1983 whose expressions relate to a matter of public

concern and are alleged to have provoked retaliatory action are

afforded First Amendment protection.                Connick v. Myers, 461 U.S.

138,   146-51      (1983)   (holding   that        First    Amendment   protection

attaches only if: (1) the expressions relate to a matter of public

concern; and (2) the employee’s interest in the speech outweighs

the employer’s interest in “effective and efficient fulfillment of

its responsibilities to the public”).                      Whether an expression

involves a matter of public concern is a question of law.                  Id. at

148 n.7.      Additionally, the Supreme Court concluded that the

question of whether “an employee’s speech addresses a matter of

public concern must be determined by the content, form, and context

of a given statement, as revealed by the whole record.”                    Id. at

147-148.

       The retaliation Givens alleged started after he filed an

incident report and began complaining to his superiors about


                                         35
similar acts of ritual hazing. The incidents that Givens described

are particularly serious and disturbing, because they occurred

inside a super-maximum security state prison, considering the

importance of such an institution and the community trust placed in

it.   Connick, 461 U.S. at 148 (concluding that because the speech

did “not seek to bring to light actual or potential wrongdoing or

breach of public trust” it was not of public concern).

      Givens alleged that the policymaking officials at Wallens

Ridge knew that other employees had also been subjected to hazing

rituals involving sexual assault and humiliation.            He also averred

that high level prison officials attempted to “cover-up” the hazing

incident and force him to leave his employment, in order to stop

him from filing suit and exposing the systematic hazing occurring

at Wallens Ridge. Kostishak v. Mannes, No. 97-1500, 1998 U.S. App.

LEXIS      7811,   at   *15-16   (4th   Cir.   1998)   (“[S]peech   for   which

[plaintiff] alleges he is being retaliated against is much more

than a grievance about his own employment: . . . [Plaintiff] has

alleged that he was terminated in retaliation for his intent to act

as a witness in administrative or judicial proceedings.                    Such

speech clearly relates to matters of public concern.”).              Although

Givens did not directly cite the First Amendment,10 the language

Givens used in his retaliation claim allows this court to draw the


      10
      However, Givens does allege a violation of the Fourteenth
Amendment, which makes the protection of the right to speech under
the Constitution applicable to the state.

                                        36
reasonable inference that he was attempting to expose the ritual

hazing at Wallens Ridge.    Thus, Givens’s complaint states a claim

for    “whistle-blower”    retaliation     invoking     First   Amendment

protection.

      Lastly, “[i]t should be noted that, if initiated for an

illegal purpose, [an] investigation itself is actionable; the

plaintiff[] need prove no further adverse employment action.”

Williams v. Hansen, 326 F.3d 569, 585 (4th Cir. 2003); Hetzel v.

County of Prince William, 89 F.3d 169, 171 (4th Cir. 1996) (noting

that an internal affairs investigation itself constitutes “adverse

employment action”).11 Thus, Givens’s allegation that the unfounded

investigations instituted by defendants were in an effort to

silence him about a matter of public concern, constitutes an

actionable claim of retaliation under § 1983.           Rakovich v. Wade,

819 F.2d 1393, 1397 (7th Cir. 1987) (holding that investigation

undertaken    in   retaliation   for    exercise   of    constitutionally

protected rights is actionable under § 1983).             Accordingly, I

disagree with the district court’s finding that Givens has not

alleged an actionable claim of retaliation under § 1983 and my

colleagues decision to affirm the district court’s ruling.




      11
        See also Allen v. Iranon, 283 F.3d 1070, 1076 (9th Cir.
2002) (discussing internal affairs investigations as among “adverse
employment actions” that could ground § 1983 liability).

                                   37
                                       IV.

     For the reasons stated herein, I concur in the judgment to

reverse the district court’s decision to dismiss Givens’s § 1983

claim based on a finding of no state action as a matter of law.

However,   I   dissent   from   this    court’s   decision   to   affirm   the

dismissal of Givens’s retaliation claim.




                                       38
