                                     UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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