                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-2509



DOGWOOD REALTY,    INCORPORATED,   a   Virginia
Corporation,

                                             Plaintiff - Appellant,

          and


NAZIR CHAUDHARY, M.D.,

                                                         Plaintiff,

          versus


RAY GOODWIN, individually and in his official
capacity as Deputy Commissioner of the
Virginia   Department   of  Social  Services;
CAROLYNNE H. STEVENS, individually and in her
official capacity as Director, Divisions of
Licensing Programs; MARY GUERRANT GOODWIN,
individually and in her official capacity as
Licensing Administrator; CHERYL H. MORRIS,
individually and in her official capacity as
Licensing    Specialist;   BARRY   A.    CAIN,
individually and in his official capacity as
Licensing     Specialist;    SUSAN    HACKNEY,
individually and in her official capacity as
Licensing Administrator; DENYCE BONAPARTE,
individually and in her official capacity as
Licensing Administrator; YVONNE RANDOLPH,
individually and in her official capacity as
Licensing Specialist,

                                            Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Dennis W. Dohnal, Magistrate
Judge. (CA-03-271-3; CA-03-508-3)
Argued:   September 21, 2005           Decided:   October 28, 2005


Before LUTTIG, Circuit Judge, HAMILTON, Senior Circuit Judge, and
James C. DEVER, III, United States District Judge for the Eastern
District of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Harold Emmett Lucas, Jr., Warrenton, North Carolina, for
Appellant.   Allen Tate Wilson, General Counsel, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
ON BRIEF: Judith Williams Jagdmann, Attorney General, William E.
Thro, State Solicitor General, Maureen Riley Matsen, Deputy
Attorney General, Edward M. Macon, Senior Assistant Attorney
General/Chief, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

     Appellant-Dogwood Realty, Inc., owner and operator of several

assisted   living    facilities   in     Virginia,   sued   various   state

employees under a variety of federal causes of action, alleging

racial discrimination with respect to the licensing and monitoring

of its assisted living facilities.         A magistrate judge dismissed

most of the claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure

to state a claim upon which relief can be granted and dismissed the

remaining claims under Fed. R. Civ. P. 56, on summary judgment.         In

this appeal, Dogwood contends that the magistrate judge erroneously

dismissed a First Amendment retaliation claim, which it maintains

the complaint alleges, and that the magistrate judge improperly

imposed a heightened pleading standard in dismissing some of

Dogwood’s claims under 42 U.S.C. § 1981.1            For the reasons that

follow, we affirm.



                                    I.

     Prior to February 2001, licensing inspectors of the Virginia

Department of Social Services (DSS) found “numerous, persistent,

and recurrent” compliance issues with assisted living facilities

owned by appellant.    J.A. 1302.      In turn, Dogwood sent letters to



     1
      Appellant raises a number of additional claims with respect
to the magistrate judge’s orders. These grounds for appeal are
meritless and the orders of the magistrate judge with respect to
them are affirmed on the reasoning below.

                                    -3-
high-ranking Virginia officials alleging that it was being cited

for minor violations because it was owned by a member of a racial

minority.      Id. at 45, 46, 49.     In February of 2001, the decision

was made to deny or terminate the licenses of several Dogwood-owned

facilities. Id. at 1302. Appellant began the state administrative

appeal process, but ultimately withdrew its appeals, id. at 1302-

03, and filed the instant suit in the Eastern District of Virginia.

In its Third Amended Complaint, appellant asserted a number of

claims of racial discrimination in the licensing decisions and the

state administrative process.        See id. at 19-44.     The majority of

the   claims    were   dismissed    under   Fed.   R.   Civ.   P.   12(b)(6),

including, of relevance here, some of appellant’s claims under

section 1981.     Id. at 116-18.    The balance of claims, including the

remainder of the section 1981 claims, were dismissed on summary

judgment.      Id. at 1294.   This appeal followed.



                                     II.

      Appellant    contends   that    the   magistrate    judge     erred   in

dismissing a First Amendment retaliation claim in its Third Amended

Complaint.     We conclude that no First Amendment claim was evident

on the face of the complaint, and that the district court did not

err in its dismissal of the complaint as pled.

      Appellant asserts, based on the following facts, that there

was a First Amendment retaliation claim pled in the Third Amended


                                     -4-
Complaint:        Paragraphs    16   and    17   allege   that    appellant     sent

letters, attached as exhibits to the complaint, to high ranking

Virginia officials complaining of discriminatory treatment by DSS

staff and that the staff therein complained about “ultimately

discovered the existence of the complaint letter[s].”                    Id. at 23;

id.   at    45,   46     (exhibits).        Paragraphs     18-20    allege      that

correspondence continued between appellant and various government

officials.    Id. at 24.       Finally, five paragraphs in the complaint,

employing    slightly       different      formulations     with    no     relevant

distinctions for purposes of this appeal, use the word “retaliate.”

For example, Paragraph 21 alleges that defendants:

      entered into a continuing conspiracy and agreed to
      retaliate    and   invidiously    discriminate    against
      [appellant], on account of race, color and national
      origin, and in furtherance thereof intentionally
      committed all of the herein acts, omissions and conduct,
      in violation of U.S.C. 42, §§ 1985, 1983, 1981, 1982, and
      the 5th (Due Process) and 14th (Privileges & Immunities,
      Due Process and Equal Protection) Amendments to the U.S.
      Constitution).

Id.; see also id. at 24 (Paragraph 22); id. at 25 (Paragraph 25);

id. at 29 (Paragraph 39).

      In   assessing      whether    appellant    raised   a     First    Amendment

retaliation claim, the inquiry is whether the complaint “[gave] the

defendant[s] fair notice” of such a claim and “the grounds upon

which it rest[ed].”        Conley v. Gibson, 355 U.S. 41, 47 (1957).

      Appellant        complained    of    racial    discrimination        to   the

government and, using the various formulations of Paragraph 21


                                          -5-
cited above, that defendants thereafter “agreed to retaliate and

invidiously discriminate against [it], on account of race, color

and   national   origin,”   see,   e.g.,    id.   at   24.     The     complaint

consistently alleges that the retaliation was “on account of race,

color and national origin,” see, e.g., id., rather than on account

of the exercise of First Amendment rights in seeking redress for

governmental racial discrimination. And the provisions of law that

appellant repeatedly claims were violated did not include the First

Amendment.     Moreover, in granting in part and denying in part the

defendants’ motion to dismiss, the magistrate judge explicitly

denominated “the only claims remaining”, id. at 148, and did not

discuss a retaliation claim as either a dismissed claim or a viable

claim.    Yet appellant did not request that the magistrate judge

clarify his order such as to preserve a First Amendment retaliation

claim.

      Under these circumstances, the defendants were entitled to

proceed   on   the   understanding   that    appellant       alleged    at   most

statutory civil rights retaliation claims only.2              There simply is

nothing in appellant’s allegations, or otherwise, that would have

placed defendants on notice that appellant was claiming that his

First Amendment right not to be retaliated against for protected



      2
      To the extent that any statutory civil rights retaliation
claim was improperly dismissed, appellant has abandoned that claim
since its appeal explicitly challenges only the improper dismissal
of its section 1983 claim. See Appellant’s Br. at 7.

                                     -6-
expression had been violated. The magistrate judge himself did not

suspect   that    appellant     intended      to   make   a    First   Amendment

retaliation claim until summary judgment, see id. at 1300, when

appellant more explicitly referenced his “freedom of speech,” id.

at 429.



                                       III.

     The magistrate judge properly applied Fourth Circuit precedent

governing Rule 12(b)(6) pleading standards in dismissing some, but

not all, of appellant’s section 1981 claims. Construed in its best

light, Dogwood’s appeal focuses on the following statement by the

magistrate judge:    “In order to state a claim under § 1981 based on

indirect proof, as here, a plaintiff . . . must first establish a

prima facie case under the same burden-shifting analysis required

for Title VII actions.”         J.A. 130 (second emphasis in original).

Appellant argues that this statement is inconsistent with the

Supreme Court’s holding in Swierkiewicz v. Sorema N.A., 534 U.S.

506, 515 (2002), that “an employment discrimination plaintiff

[under    Title   VII]   need    not     plead     a   prima   facie   case   of

discrimination . . . [in order] to survive [a] motion to dismiss.”

     However, “[o]ur circuit has not . . . interpreted Swierkiewicz

as removing the burden of a plaintiff to allege facts sufficient to

state all the elements of [its] claim.”                Bass v. E.I. Dupont de

Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v.


                                       -7-
Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002)).              In other

words, “[w]hile a plaintiff is not charged with pleading facts

sufficient to prove [its] case, as an evidentiary matter, in [its]

complaint, a plaintiff is required to allege facts that support a

claim for relief.”      Id.    The magistrate judge correctly applied

this test, as the only section 1981 claims dismissed were those

where there were “no facts alleged in . . . the Complaint that

might    show   or   even   allow   an   inference   that   any   defendant

intentionally discriminated against Dogwood because of race or

national origin,” J.A. 132; discriminatory intent is, of course, an

element of section 1981 actions, see General Bldg. Contractors

Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982).            That the

magistrate judge correctly applied this Circuit’s test is confirmed

by the fact that he denied the motion to dismiss with respect to

those portions of the complaint that did allege facts sufficient to

state the element of intentional discrimination. J.A. 132-33. The

dismissal of some of appellant’s section 1981 claims at the Rule

12(b)(6) stage therefore was not error.



                                CONCLUSION

        For the reasons stated herein, the orders of the magistrate

judge are affirmed.

                                                                   AFFIRMED




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