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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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DANIEL L. VENEY,
Plaintiff-Appellant,
v.No. 01-6603
T. V. WYCHE; DARNLEY R. HODGE,
Superintendent,
Defendants-Appellees.
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Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (CA-01-163)
Argued: April 5, 2002
Decided: June 18, 2002
Before WIDENER and WILLIAMS, Circuit Judges, and Walter K. STAPLETON, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation.
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Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Widener and Senior Judge Stapleton joined.
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COUNSEL
ARGUED: John M. Wright, Student Counsel, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION
CLINIC, Charlottesville, Virginia, for Appellant. William Fisher
Etherington, BEALE, BALFOUR, DAVISON & ETHERINGTON,
P.C., Richmond, Virginia, for Appellees. ON BRIEF: Neal L. Wal-
ters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPEL-
LATE LITIGATION CLINIC, Charlottesville, Virginia, for
Appellant. William K. Lewis, BEALE, BALFOUR, DAVISON &
ETHERINGTON, P.C., Richmond, Virginia, for Appellees.
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OPINION
WILLIAMS, Circuit Judge:
Daniel L. Veney, an inmate incarcerated at Riverside Regional Jail
in Hopewell, Virginia, filed the present action under 42 U.S.C.A.
§ 1983 (West 1994), alleging that defendants Lieutenant T. V. Wyche
and Superintendent Darnley R. Hodge violated his rights under the
Equal Protection Clause of the United States Constitution by treating
him differently from other inmates because of his gender and sexual
preference. Specifically, Veney claims that defendants denied his
requests to move from his single-occupancy cell into a double-
occupancy cell because he is a homosexual male. The district court,
after screening Veney's complaint pursuant to 28 U.S.C.A. § 1915A
(West Supp. 2001), dismissed the complaint for failure to state a
claim upon which relief may be granted. Because we agree with the
district court that even if all of Veney's allegations were true, he
would not be entitled to relief, we affirm.
I.
Veney has been incarcerated at Riverside since January 23, 2000.
With the exception of two days, he has been held in a single-
occupancy cell. On December 17, 2000, after several requests to
switch into a double-occupancy cell were denied, Veney filed a griev-
ance with Riverside alleging that prison officials, by not allowing him
to switch cells with other inmates, were discriminating against him
because he is a homosexual male. On December 22, 2000, Captain L.
White ruled that Veney was not being discriminated against. Veney
unsuccessfully appealed White's decision under the Riverside griev-
ance procedure. On March 7, 2001, Veney filed a pro se complaint
2
in the United States District Court for the Eastern District of Virginia
under 42 U.S.C.A. § 1983, alleging that prison officials had violated
his constitutional right to equal protection of the law.
In his complaint, Veney claims that he is being treated differently
from similarly situated heterosexual males and homosexual females,
both of whom, asserts Veney, are housed in double-occupancy cells
at Riverside. The district court, as required under the Prison Litigation
Reform Act of 1996 (PLRA), reviewed Veney's complaint to identify
any cognizable claims. See 28 U.S.C.A. § 1915A (West Supp. 2001).
After careful consideration of Veney's pleadings, the district court
determined that his complaint failed to state a claim upon which relief
may be granted and dismissed the action. On appeal, Veney chal-
lenges the district court's dismissal of his equal protection claim,
asserting that his complaint alleges specific facts showing that correc-
tional officials treated him differently from similarly situated inmates
without a legitimate penological reason for doing so.
II.
Under § 1915A, the provision at issue in this case, the district court
is required to review any "complaint in a civil action in which a pris-
oner seeks redress from a governmental entity or officer or employee
of a governmental entity . . . [and] identify cognizable claims or dis-
miss the complaint, or any portion of the complaint, if the complaint
. . . fails to state a claim upon which relief may be granted . . . ." 28
U.S.C.A. § 1915A(a), (b)(1). We review dismissals for failure to state
a claim de novo. See Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir.
1999) (concluding that dismissals under § 1951A for failure to state
a claim require the same standard of review as dismissals under Rule
12(b)(6)); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C.
Cir. 1998) (same).
A complaint should not be dismissed for failure to state a claim
upon which relief may be granted unless "after accepting all well-
pleaded allegations in the plaintiff's complaint as true and drawing all
reasonable factual inferences from those facts in the plaintiff's favor,
it appears certain that the plaintiff cannot prove any set of facts in
support of his claim entitling him to relief." Edwards v. City of Golds-
boro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, when such a dis-
3
missal involves a civil rights complaint, "we must be especially
solicitous of the wrongs alleged" and "must not dismiss the complaint
unless it appears to a certainty that the plaintiff would not be entitled
to relief under any legal theory which might plausibly be suggested
by the facts alleged." Harrison v. United States Postal Serv., 840 F.2d
1149, 1152 (4th Cir. 1988) (internal quotation marks omitted). We are
not required, however, "to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable infer-
ences." See Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001). Nor must we "accept as true allegations that contra-
dict matters properly subject to judicial notice or by exhibit." Id.
These principles guide our de novo review of the district court's dis-
missal of Veney's complaint.
III.
The Equal Protection Clause of the Fourteenth Amendment pro-
vides that "[n]o State shall . . . deny to any person within its jurisdic-
tion the equal protection of the laws." U.S. Const. amend. XIV, § 1.
The equal protection requirement "does not take from the States all
power of classification," Personnel Adm'r v. Feeney, 442 U.S. 256,
271 (1979), but "keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike." Nordlinger
v. Hahn, 505 U.S. 1, 10 (1992). To succeed on an equal protection
claim, Veney "must first demonstrate that he has been treated differ-
ently from others with whom he is similarly situated and that the
unequal treatment was the result of intentional or purposeful discrimi-
nation." Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
If he makes this showing, "the court proceeds to determine whether
the disparity in treatment can be justified under the requisite level of
scrutiny." Id. To state an equal protection claim, Veney must plead
sufficient facts to satisfy each requirement, which we discuss in turn.
A.
Veney claims that he is not allowed to occupy a double-occupancy
cell because he is a homosexual male. He asserts that both heterosex-
ual males and homosexual females at Riverside are housed in double-
occupancy cells, while his requests to move from his single-
occupancy cell have been consistently denied. Veney further alleges
4
that requests to move into a double-occupancy cell made by "seem-
ingly heterosexual" males were granted. (J.A. at 6.) For purposes of
this appeal, we must accept Veney's allegations as true and draw all
inferences in his favor. We therefore assume that Veney is not
allowed to move into a double-occupancy cell because he is a homo-
sexual male.1 We also assume, without deciding, that in all relevant
respects, Veney is similarly situated to the other inmates at Riverside.2
Veney's complaint therefore sufficiently alleges that Riverside is
intentionally discriminating against him by treating him differently
from similarly situated heterosexual males and homosexual females.3
B.
Having determined that Veney's complaint alleges disparate treat-
ment based upon intentional discrimination, we turn to our second
inquiry of whether Veney has alleged facts that, if found to be true,
would demonstrate that the disparate treatment lacks justification
under the requisite level of scrutiny. Ordinarily, when a state regula-
tion or policy is challenged under the Equal Protection Clause, unless
it involves a fundamental right or a suspect class, it is presumed to
be valid and will be sustained "if there is a rational relationship
between the disparity of treatment and some legitimate governmental
purpose." Heller v. Doe, 509 U.S. 312, 319-320 (1993). Veney's case
does not involve a fundamental right, and he does not allege that he
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1 Although we must accept as true Veney's allegations regarding the
existence of a policy that disallows homosexual males from moving into
double-occupancy cells, we note that in response to these allegations, the
defendants assert that no such policy exists and that they deny all pris-
oner requests to switch cells unless a move is necessary for security or
medical reasons.
2 While similarity could be determined as a matter of law, the relevant
information to make such a determination is absent from the record. For
example, the similarity inquiry includes consideration of factors such as
the prison population size, average length of sentence, security classifica-
tion, and types of crimes. See Keevan v. Smith, 100 F.3d 644, 668 (8th
Cir. 1996).
3 We note that, according to Veney's allegations, the only difference
between his cell and the cells of those who are similarly situated is that
his is single-occupancy.
5
is a member of a suspect class.4 Rather, he claims that he has been
discriminated against on the basis of sexual preference and gender.
Outside the prison context, the former is subject to rational basis
review, see Romer v. Evans, 517 U.S. 620, 631-32 (1996) (applying
the rational relation test to an amendment to Colorado's constitution
that prohibited any measures to protect homosexuals as a class),
whereas the latter is subject to an intermediate level of scrutiny, see
Craig v. Boren, 429 U.S. 190, 197 (1976) ("To withstand constitu-
tional challenge, previous cases establish that classifications by gen-
der must serve important governmental objectives and must be
substantially related to achievement of those objectives."). When
equal protection challenges arise in a prison context, however, courts
must adjust the level of scrutiny to ensure that prison officials are
afforded the necessary discretion to operate their facilities in a safe
and secure manner. See Morrison, 239 F.3d at 654-55. In a prison
context, therefore, we must determine whether the disparate treatment
is "reasonably related to [any] legitimate penological interests." Shaw
v. Murphy, 532 U.S. 223, 225 (2001). We apply this deferential stan-
dard "even when the alleged infringed constitutional right would oth-
erwise warrant higher scrutiny;" however, this more deferential
review does not make us ignorant to the concerns that justify applica-
tion of a heightened standard outside of the prison context. Morrison,
239 F.3d at 655, 656. Accordingly, to state a claim upon which relief
may be granted, Veney must allege facts sufficient to overcome the
presumption of reasonableness applied to prison policies.
As we noted in Morrison, to evaluate the reasonableness of River-
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4 Veney concedes that there is no fundamental right to be held in a
double-occupancy cell. There also is no fundamental right to engage in
homosexual acts generally, see Thomasson v. Perry, 80 F.3d 915, 929
(4th Cir. 1996) ("Given that it is legitimate for Congress to proscribe
homosexual acts, it is also legitimate for the government to seek to fore-
stall these same dangers [of sexual tensions and attractions within a mili-
tary unit] by trying to prevent the commission of such acts." (emphasis
in original)), and even if a right to engage in homosexual acts existed,
it would not survive incarceration. Cf. Hernandez v. Coughlin, 18 F.3d
133, 137 (2nd Cir. 1994) (prisoners have no right to conjugal visits
because "[r]ights of marital privacy . . . are necessarily and substantially
abridged in the prison setting").
6
side's policy, we apply the factors set forth in Turner v. Safley, 482
U.S. 78, 89-90 (1987). Three of the four factors are relevant to
Veney's equal protection claim. Cf. Washington v. Harper, 494 U.S.
210, 224-25 (1990) (applying three of the four Turner factors to a
substantive due process claim). "First, there must be a `valid, rational
connection' between the prison regulation and the legitimate govern-
mental interest put forward to justify it." Turner, 482 U.S. at 89. Sec-
ond, a court must consider "the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally." Id. at 90. Third, "the
absence of ready alternatives is evidence of the reasonableness of a
prison regulation."5 Id. at 90-91 ("This is not a `least restrictive alter-
native' test: prison officials need not set up and then shoot down
every conceivable alternative method of accommodating the claim-
ant's constitutional complaint.").
1.
Veney argues that "[t]here is no legitimate penological interest for
the segregation of homosexual, male inmates." (Appellant's Br. at
22.) We disagree. Prison safety and security are legitimate penologi-
cal interests that we must consider. See Washington, 494 U.S. at 223
("The legitimacy, and the necessity, of considering the State's inter-
ests in prison safety and security are well established by our cases.").
Thus, applying the Turner factors, we must first determine whether
there is a valid, rational connection between safety and security and
housing homosexual males in single-occupancy cells. Turner, 482
U.S. at 89. In conducting this inquiry, we note that decisions relating
to the accommodation of inmates, such as cell assignments, are the
type of day-to-day judgments that rest firmly in the discretion of
prison officials. See Pitts v. Thornburgh, 886 F.2d 1450, 1453-54
(D.C. Cir. 1989) (distinguishing between "cases involving regulations
that govern the day-to-day operation of prisons" and those that
involve "general budgetary and policy choices made over decades in
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5 The final factor identified in Turner was "whether there are alterna-
tive means of exercising the right that remain open to prison inmates."
Turner, 482 U.S. at 90. Because of the nature of Veney's equal protec-
tion claim, this factor is not relevant. See Washington v. Harper, 494
U.S. at 224 (excluding as irrelevant the "alternative means" factor).
7
the give and take of city politics," and concluding that the former is
entitled to significantly more deference than the latter). Second-
guessing such judgments "would seriously hamper [the prison offi-
cials'] ability to anticipate security problems and to adopt innovative
solutions to the intractable problems of prison administration."6 Tur-
ner, 482 U.S. at 89.
With this deference in mind, we recognize that there are many
valid reasons that support the prison officials' conclusion that homo-
sexuals should not be assigned to double-occupancy cells. For exam-
ple, housing homosexuals with other homosexuals could lead to
sexual activity between cellmates, which, as counsel for Appellees
pointed out at oral argument, would jeopardize prison security. Sexual
activity between cellmates also raises concerns about the transmission
of diseases, such as HIV. Similarly, housing homosexuals with het-
erosexuals might cause friction between cellmates that potentially
could lead to violence. In light of examples of anti-homosexual vio-
lence in our society, we cannot ignore the fact that homosexuals are
subject to bias-motivated attacks from heterosexuals.7 See Dickerson
v. United States, 530 U.S. 428, 443 (2000) (noting that aspects of
national culture are relevant in constitutional analysis). Outside of the
prison environment, concerns of bias-motivated attacks on homosexu-
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6 The need for prison officials to have discretion with regard to cell
assignments also justifies the existence of different policies at different
facilities. Veney's assertion that homosexual males at Powhatan Correc-
tional Center are allowed to live in double-occupancy cells, therefore, is
not relevant to his equal protection claim, even assuming he is similarly
situated to these inmates.
7 Indeed, recent anti-gay attacks, such as the brutal murder of Matthew
Shepard, demonstrate that resentment towards homosexuals in our soci-
ety sometimes leads to severe violence and even murder. See Tom Ken-
worthy, Second Man is Convicted of Killing Gay Student, Wash. Post,
November 4, 1999, at A1 (describing the murder of Matthew Shepard,
who was a homosexual student attending the University of Wyoming);
Josh White, Guilty Plea in Attack on Gay Teen, Wash. Post, December
8, 2000, at B5 (describing attack in which homosexual youth was hit
over the head with metal pole); Sue Anne Pressley, Hate May Have Trig-
gered Fatal Barracks Beating, Wash. Post, August 11, 1999, at A1
(describing attack in which a homosexual private first class was blud-
geoned to death).
8
als have prompted almost half of the states to protect homosexuals
with hate crime statutes. See, e.g., Fla. Stat. ch. 775.085 (2001)
(increasing penalty for crimes that evidence prejudice based on,
among other characteristics, sexual orientation); Ky. Rev. Stat.
Ann. § 532.031 (Baldwin 2001) (defining hate crimes to include
offenses motivated by sexual orientation); see also State Hate
Crimes/Statutory Provisions at http://www.adl.org/99hatecrime/
provisions.html (2001). Studies also have shown that inmates known
to be homosexuals are at a greater risk of being sexually attacked in
prison. See Robert Dumond, Inmate Sexual Assault: The Plague that
Persists, 80 Prison J. 407, 408 (2000) (listing homosexuals as a group
that appears to be more vulnerable to sexual victimization). Thus, in
the prison environment, where inmates live in close quarters and their
movements are restricted, prison officials reasonably may conclude
that more proactive measures are required to protect homosexuals
from bias-motivated attacks. Not allowing heterosexuals to share cells
with homosexuals is a rational means of preventing violence between
the groups. Moreover, not allowing homosexuals to share cells with
other homosexuals is a rational means of preventing sexual activity
and the spread of sexually transmitted diseases. The authorities at
Riverside are, therefore, not constitutionally precluded from limiting
homosexuals to single-occupancy cells.
This does not end our inquiry, however, because Veney alleges that
Riverside discriminates against him not only because he is a homo-
sexual, but also because he is a male. We must, therefore, consider
whether the gender-based dimension of the alleged discrimination is
rationally connected to safety and security concerns in the prison,
while again keeping in mind the deferential standard applicable to
decisions regarding day-to-day prison management, see supra, at 5-6.
At Riverside, females and males are housed separately, and each
gender faces unique safety and security concerns of various degrees.
Indeed, it is a well-documented reality that institutions for females
generally are much less violent than those for males. See, e.g., Kim-
berly R. Greer, The Changing Nature of Interpersonal Relationship
in a Women's Prison, 80 Prison J. 442, 462 (2000); Klinger v. Dep't
of Corr., 31 F.3d 727, 732 (8th Cir. 1994) ("Male inmates . . . are
more likely to be violent and predatory than female inmates."). More-
over, studies show that male inmates are more likely than female
9
inmates to have homophobic attitudes. See Christopher Hensley, Atti-
tudes Toward Homosexuality in a Male and Female Prison, 80 Prison
J. 434, 440 (2000) ("[L]ike societal attitudes, women are less
homophobic even while incarcerated."). Insofar as homophobic atti-
tudes lead to bias-motivated attacks, see supra, at 8-9, and males are
more likely to have such attitudes than are females, prison officials
would be justified in concluding that male inmates present a greater
threat than female inmates of initiating such attacks. In formulating
and executing decisions relating to cell assignments, we must allow
prison authorities the discretion to take into account the particular
safety and security concerns facing male inmates, even though such
considerations result in disparate treatment based upon gender.
Accordingly, because the safety and security concerns that arise from
housing homosexuals in double-occupancy cells are more significant
with respect to males than they are with respect to females, we con-
clude that the complained of gender-related disparate treatment in the
housing of homosexuals is rationally calibrated to address legitimate
penological concerns.8
2.
The second Turner factor we must consider is the impact of accom-
modating the asserted constitutional right. Accommodating homosex-
ual males in double-occupancy cells would require prison officials to
devote more time to making cell assignments because they would
have to ensure that homosexuals were not housed with other homo-
sexuals or with violent homophobic inmates. Furthermore, the sexual
tension caused by such a living arrangement would place a greater
burden on guards who would have to prevent and control disturbances
between homosexual and heterosexual cellmates.
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8 Veney argues that safety and security concerns cannot be reasonable
bases for the prison officials' refusal to house him in a double-occupancy
cell because "[h]e has never been involved in a safety or security issue
arising from his sexual preference, nor has he felt his personal safety was
in jeopardy at Riverside." (Appellant's Br. at 21.) Even if Veney estab-
lished at trial that he has been safe at Riverside, the alleged policy of lim-
iting homosexuals to single-occupancy cells would be justifiable, in that
evidence of Veney's past safety does not undermine the existence of a
rational connection between concerns over inmate safety and a policy
against housing homosexual males in double-occupancy cells.
10
3.
The third Turner factor informs us that "the absence of ready alter-
natives is evidence of the reasonableness of a prison regulation." Id.
at 90. Because part of the friction that Riverside aims to prevent
results from homosexual males and heterosexual males living
together, there is no ready alternative to the prison's policy of not let-
ting members of these two groups live in the same cell. We conclude,
therefore, that the prison policy of not letting homosexual males live
in double-occupancy cells is reasonably justified by a legitimate
penological interest. Because Veney has not alleged facts that, if
proven true, would demonstrate that the alleged prison policy at issue
is not reasonably related to legitimate penological interests, his com-
plaint fails to state a claim upon which relief may be granted.
IV.
Because the disparate treatment alleged by Veney is justified by
legitimate penological interests, he would not be entitled to relief
even if all of his allegations were true. Accordingly, we affirm the
district court's dismissal under § 1915A.
AFFIRMED
11