DOGWOOD REALTY, INCORPORATED, a Virginia Corporation v. Ray Goodwin, individually

UNPUBLISHED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)

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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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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1Appellant 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.
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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

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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

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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

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2To 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.
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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

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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.

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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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