Terry W. Givens v. Voorhaar, 316 F.3d 516 4th Cir. 2003 , it constituted state action for the deputy…

UNPUBLISHED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Affirmed in part and reversed in part by unpublished per curiam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

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2
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Unpublished opinions are not binding precedent in this circuit.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).

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3
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.

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4
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.

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5
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

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6
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.

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1This complaint was found to be unsubstantiated.
2Givens does not appeal this aspect of the order of the
district court.
7
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

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8
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

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9
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

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10
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

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11
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

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3Judge 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
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.

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13
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

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14
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

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4Givens 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
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

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16
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

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17
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).

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5United 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
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

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19
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”).

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6Givens 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
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).

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21
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

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22
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.

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1Givens 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
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.

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2This 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
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.

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3Givens’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
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

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26
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

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27
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).

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28
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

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4Accordingly, “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
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

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5The 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
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

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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
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.

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7I 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.
8Judge 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
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

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9I 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
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

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34
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

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35
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

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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
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

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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
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.

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38
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.

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