                             UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
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

                                                3
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.



                                           4
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).



                                    5
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)
                                                  6
      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.



                                           7
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-cv-

01692 (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


      6Following 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)
                                            8
                                     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.



                                         9
       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

                                               10
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.



                                              11
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).



                                               12
