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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-6706
BENJAMIN FORREST CARTER,
Plaintiff - Appellant,
v.
BETH CABELL, in her individual and official capacity; KEVIN MCCOY, in his
individual and official capacity; JOSHUA BRANCH, in his individual and official
capacity; JOHN DOES; COMMONWEALTH OF VIRGINIA,
Defendants - Appellees,
and
HAROLD W. CLARKE,
Defendant.
No. 24-6741
BENJAMIN FORREST CARTER,
Plaintiff - Appellant,
v.
BETH CABELL, in her individual and official capacity; KEVIN MCCOY, in his
individual and official capacity; JOSHUA BRANCH, in his individual and official
capacity; JOHN DOES; COMMONWEALTH OF VIRGINIA,
Defendants - Appellees,
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and
HAROLD W. CLARKE,
Defendant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Michael Stefan Nachmanoff, District Judge. (1:22-cv-01160-MSN-WEF)
Argued: May 7, 2026 Decided: August 4, 2026
Before NIEMEYER, HARRIS, and BERNER, Circuit Judges.
Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which
Judge Niemeyer and Judge Berner joined.
ARGUED: Faith Shelman, Melissa Stuckey, WAKE FOREST UNIVERSITY SCHOOL
OF LAW, Winston-Salem, North Carolina, for Appellant. Triston Chase O’Savio,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: John J. Korzen, Vivian Bolen, Student Counsel, WAKE FOREST
UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Jay
Jones, Attorney General, Travis G. Hill, Chief Deputy Attorney General, Richard C.
Vorhis, Senior Assistant Attorney General, Tillman J. Breckenridge, Solicitor General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.
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PAMELA HARRIS, Circuit Judge:
Plaintiff Benjamin Carter initiated this action pro se while incarcerated in a Virginia
state prison. In an amended complaint, he alleged that prison officials violated his Eighth
Amendment rights by subjecting him to unconstitutional conditions of confinement and
violated his First Amendment rights by retaliating against him for complaining about those
conditions. The district court granted summary judgment to all the defendant officials,
holding that Carter failed to exhaust administrative remedies as required by the Prison
Litigation Reform Act. As to certain defendants, the district court also ruled, in the
alternative, that Carter had failed to state a cognizable claim.
We disagree with the district court. As to exhaustion, we conclude that Carter
properly exhausted his First Amendment retaliation claims because he completed the
available administrative process before filing the amended complaint in which he first
raised those claims in court. Whether Carter has exhausted his Eighth Amendment claims,
by contrast, turns on whether administrative remedies were truly “available” to him, see
Ross v. Blake, 578 U.S. 632 (2016), and we remand to the district court for consideration
of that question in the first instance. Finally, we conclude that the district court erred in
holding that Carter failed to state plausible Eighth Amendment and First Amendment
claims against certain defendants. Accordingly, we vacate the district court’s judgment
and remand for further proceedings.
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I.
We begin by outlining the factual and procedural history of Carter’s case, including
his interactions with the Virginia Department of Corrections grievance process and the two
complaints he filed in federal district court. We then summarize the district court decisions
now on appeal.
A.
At all times relevant to this appeal, plaintiff Benjamin Carter was a prisoner in the
Restrictive Housing Unit (RHU) at Sussex State Prison, a facility within the Virginia
Department of Corrections (VDOC). Carter alleges that in the RHU, he was subject to
conditions of confinement analogous to those we found unconstitutional in Porter v.
Clarke, 923 F.3d 348 (4th Cir. 2019), a case concerning the conditions death row prisoners
at Sussex faced between 2010 and 2015, id. at 353. And Carter asserts the conditions he
faced were particularly harmful to him because he suffers from numerous serious mental
illnesses.
Carter tried to access better conditions of confinement through the VDOC’s
grievance process. That process generally consists of three steps: First, an inmate must
make good-faith efforts to informally resolve his issue through verbal discussion with
relevant prison officials, and, if needed, an informal written complaint. Second, if informal
resolution fails, the inmate must file a regular grievance. At this stage, the regular
grievance is screened by an intake team, who determine whether to accept or reject the
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grievance based on a set of filing requirements. Third, if a grievance is accepted at intake,
it proceeds to a series of more formal reviews.
Carter filed numerous informal complaints and grievances about the conditions he
faced in the RHU, but only three are relevant to this appeal. First, in June 2022, he
submitted an informal complaint seeking reclassification into reentry programming, which
would have transitioned him out of the RHU. 1 That complaint was rejected by Joshua
Branch, the manager of Carter’s housing unit. Branch did not provide a reason for denying
the complaint, and Carter never submitted a regular grievance after Branch’s rejection.
Carter’s June 2022 complaint is important because, according to Carter, Branch and
other Sussex officials retaliated against him for his complaint. About two weeks after
rejecting the complaint, Branch allegedly told Carter: “Stop writing me up Carter, you[’re]
really not going to get reentry now.” J.A. 113. Carter responded by again “plead[ing] to
be let out of RHU,” but “Branch just laughed” and said that Kevin McCoy and Beth Cabell,
two wardens at Sussex, “weren’t having that especially after [Carter] wrote them up about
not getting reentry.” Id.
Carter then filed two regular grievances relevant to this appeal, both in late
September 2022. First, Carter submitted a grievance asserting he had been retaliated
against for requesting reclassification into reentry programming and transfer out of the
1
According to Carter, a VDOC policy requires reclassification of inmates who are
within two years of their release date, and when he filed this informal complaint, his release
date was June 2024. At oral argument, Carter’s court-appointed counsel represented that
although Carter has been released from Sussex State Prison, he remains incarcerated at a
different facility in connection with a separate offense.
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RHU. And second, Carter submitted a grievance regarding the conditions of confinement
he continued to face in the RHU. Both grievances followed informal complaints Carter
had submitted earlier on the same matters.
Shortly after filing these grievances – and, critically, before step two of the
grievance process was completed – Carter initiated this action, pro se, by mailing a
complaint to a federal district court in the Eastern District of Virginia. That complaint
concerned only his conditions of confinement in the RHU. Carter alleged that those
conditions violated the Eight Amendment and sought damages and injunctive relief under
42 U.S.C. § 1983 against Branch, McCoy, Cabell, and other unnamed Sussex officials;
Harold Clarke, then the Director of the VDOC; and the Commonwealth of Virginia. The
district court assessed Carter a filing fee and then conditionally granted his motion for leave
to proceed in forma pauperis. Neither the district court nor the defendants took any other
action in response to this complaint.
As noted above, when Carter filed this first complaint, his grievances were still at
the second, intake stage of the grievance process. Both had been rejected at intake, and
Carter’s appeals of those rejections were pending. But those appeals were finalized by late
October 2022, when both intake rejections were affirmed.
It was after that, in January 2023, that Carter, still proceeding pro se, filed the
amended complaint that is now the operative complaint in this litigation. Carter reasserted
his Eighth Amendment conditions of confinement claims in his amended complaint. But
for the first time, he also asserted First Amendment retaliation claims against Branch,
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McCoy, and Cabell, premised on Branch’s comments to Carter following his June 2022
informal complaint. All of these claims, too, arise under 42 U.S.C. § 1983.
B.
In its first order, the district court reviewed Carter’s amended complaint for frivolity
under 28 U.S.C. § 1915A. J.A. 137. The court dismissed only one of Carter’s claims: his
Eighth Amendment claim against Clarke, director of the VDOC, which the court construed
as premised on supervisory liability. Id. Carter failed to state a supervisory liability claim
against Clarke, the district court reasoned, because none of his allegations allowed for an
inference that Clarke “had any knowledge of [Carter’s] specific conditions” of
confinement. J.A. 138. The district court then denied Carter’s motion for reconsideration
of this ruling, applying the same reasoning: Carter’s complaint, the court recognized,
offered “sufficient facts to infer that Clarke had knowledge, in the abstract,” of the
allegedly unconstitutional conditions of confinement, but “exactly zero information to
suggest that Clarke had knowledge of the fact that plaintiff was being held” in such
conditions. J.A. 300.
With Clarke dismissed from the action, the court ordered the remaining defendants
– Cabell, McCoy, Branch, and the Commonwealth of Virginia – to respond to Carter’s
claims. The defendants elected to concurrently file a joint answer and motion for summary
judgment. The defendants argued that the exhaustion requirement in the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a), foreclosed all the claims in Carter’s amended
complaint because Carter failed to exhaust the VDOC grievance process before filing his
original complaint. And in the alternative, they asserted that Carter’s allegations failed to
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state First Amendment retaliation claims upon which relief could be granted. The
defendants did not address the merits of Carter’s Eighth Amendment claims.
Prior to any discovery, the district court granted summary judgment to the
defendants and dismissed Carter’s case. Carter v. Cabell, 2024 WL 1356670 (E.D. Va.
Mar. 29, 2024). On exhaustion, the district court largely agreed with the defendants. Carter
appeared to have exhausted his grievances before filing his amended complaint, the court
concluded, but it was undisputed that he had not yet fully exhausted when he filed his
original complaint. Id. at *5. And under our unpublished decision in Hardin v. Hunt, 2023
WL 3969989 (4th Cir. June 13, 2023), the court reasoned, a plaintiff cannot cure an initial
failure to exhaust by completing a grievance process after commencing a lawsuit and then
filing an amended complaint. Carter, 2024 WL 1356670, at *5. Accordingly, the court
dismissed all of Carter’s claims – both the Eighth Amendment claims raised in his initial
complaint and the First Amendment claims raised for the first time in his amended
complaint – for failure to exhaust. Id. at *5–6.
The district court also addressed the defendants’ alternative argument that Carter’s
First Amendment claims should be dismissed for failure to state a claim. Now analyzing
those claims under Rule 12(b)(6), see id. at *2, the court found that Carter’s amended
complaint stated a plausible First Amendment retaliation claim against Branch but failed
to state such claims against McCoy and Cabell, id. at *6. Branch’s alleged statements to
Carter about Carter’s June 2022 informal complaint, the district court reasoned, were
sufficient to support an inference that Branch denied Carter’s informal complaint, and thus
kept him confined in the RHU, in retaliation for “writing [Branch] up,” which constituted
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protected First Amendment activity. Id. But in the district court’s view, Branch’s alleged
references to McCoy and Cabell were insufficient to implicate those officials. Id. at *7. 2
Carter timely appealed, pro se, the district court’s summary judgment decision, and
we appointed counsel to represent him in the proceedings before us. 3
II.
On appeal, Carter challenges the district court’s rulings on exhaustion under the
PLRA and on the merits of his claims. We consider each issue in turn.
A.
We begin with whether the PLRA’s exhaustion requirement forecloses Carter’s
claims, an issue the district court considered in a summary judgement posture. We review
the district court’s grant of summary judgment de novo. Gowen v. Winfield, 130 F.4th 162,
171 (4th Cir. 2025). Summary judgment is only appropriate if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Id. at
171–72.
2
The district court also dismissed Carter’s claims against the Commonwealth of
Virginia as barred by the Eleventh Amendment and as impermissibly premised on
respondeat superior liability, which is not actionable under 42 U.S.C. § 1983. Carter, 2024
WL 1356670, at *7. Carter has not appealed this holding.
3
We appointed Professor John J. Korzen, Director of the Appellate Advocacy Clinic
at Wake Forest University School of Law, as counsel for Carter. The panel commends
Professor Korzen and Wake Forest University School of Law students Vivian Bolen, Faith
Shelman, and Melissa Stuckey for their written advocacy on behalf of Mr. Carter, and Ms.
Shelman and Ms. Stuckey for their able oral presentations.
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The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Carter has
two arguments for why this provision does not bar his claims. First, he asserts that he did
exhaust any available administrative remedies with respect to his First Amendment claims.
According to Carter, because he exhausted his grievances before filing his amended
complaint, and because he asserted his First Amendment claims for the first time in that
amended complaint, those claims are in compliance with § 1997e(a). Second, as to both
his claims, Carter contends that any remedies he did not exhaust were not genuinely
“available” to him, and that he was therefore entitled to proceed consistent with § 1997e(a).
See Ross v. Blake, 578 U.S. 632, 642 (2016) (“Under § 1997e(a) . . . [a]n inmate . . . must
exhaust available remedies, but need not exhaust unavailable ones.”).
For the reasons given below, we agree with Carter on the first point and hold that
the PLRA’s exhaustion requirement poses no bar to his First Amendment claims. As for
Carter’s Eighth Amendment claims, we find it appropriate to remand to the district court
to consider the availability issue in the first instance.
1.
Carter’s first argument presents a simple question: Does the filing of his amended
complaint control the PLRA exhaustion analysis for his First Amendment claims, or does
the filing of his original complaint control that analysis? Carter does not dispute that when
he filed his first complaint in this action, he had not yet exhausted his administrative
remedies. But Carter did not raise any First Amendment claims in that complaint. And
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the parties agree that by the time Carter filed the amended complaint that raised his First
Amendment claims for the first time, he had exhausted the available administrative
remedies. 4 So, if the timing of the original complaint controls the analysis, Carter’s First
Amendment claims are barred by the PLRA, but if the amended complaint controls, they
may proceed.
The federal courts of appeals that have considered this question have adopted a
spectrum of approaches. Under the broadest approach, adopted by the Third and Ninth
Circuits, the timing of the amended complaint controls the PLRA exhaustion analysis for
all claims pleaded in that complaint – including claims (like Carter’s Eighth Amendment
claims) that also appear in the original complaint and that were not exhausted when the
original complaint was filed. See Saddozai v. Davis, 35 F.4th 705, 708–09 (9th Cir. 2022);
Garrett v. Wexford Health, 938 F.3d 69, 84, 87–88 (3d Cir. 2019). Other circuits take a
more middle-ground position, holding that an amended complaint controls the analysis for
claims raised for the first time in the amended complaint (like Carter’s First Amendment
4
The district court assumed that Carter properly exhausted the VDOC grievance
process by the time he filed his amended complaint without conclusively deciding that
question. See Carter, 2024 WL 1356670, at *5 (finding that Carter “arguably exhausted”
his claims). But in their brief on appeal and at oral argument, the defendants have
expressly conceded that Carter did in fact exhaust his remedies in October 2022, well
before filing his amended complaint. The PLRA’s exhaustion requirement is not
jurisdictional, but instead is an affirmative defense that must be pleaded and proved by the
defendants. Jones v. Bock, 549 U.S. 199, 211–12 (2007). We thus take the defendants at
their word that Carter exhausted the VDOC grievance process before filing his amended
complaint. See United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (under “the
principle of party presentation . . . we rely on the parties to frame the issues for decision
and assign to courts the role of neutral arbiter of matters the parties present” (internal
quotation marks omitted)).
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claims) but not for claims pleaded in the original complaint. Barnes v. Briley, 420 F.3d
673, 678 (7th Cir. 2005); Chambers v. Sood, 956 F.3d 979, 984–85 (7th Cir. 2020); see
also Mattox v. Edelman, 851 F.3d 583, 595 (6th Cir. 2017) (adopting similar analysis).
And the Tenth Circuit appears to have adopted a still-narrower rule that for purposes of the
PLRA’s exhaustion requirement, an amended complaint may “supersed[e] the original
complaint’s allegations but not its timing.” May v. Segovia, 929 F.3d 1223, 1229 (10th
Cir. 2019) (emphasis omitted). That case, however, did not involve claims asserted for the
first time in an amended complaint, so it remains unclear how the Tenth Circuit would
decide the specific issue we confront.
Here, Carter does not ask us to embrace the approach of the Third and Ninth
Circuits, under which both his Eighth Amendment and his First Amendment claims could
proceed because both were exhausted before the filing of his amended complaint. Instead,
he asks us to consider the impact of his amended complaint on his First Amendment claims
only – claims that were raised for the first time in his amended complaint, after they were
exhausted administratively. Accordingly, we leave for another day the merits of the
broader rule adopted by the Third and Ninth Circuits. We focus our attention where Carter
focuses it – exclusively on his First Amendment claim – and turn to the relatively narrow
question his argument poses: Is the PLRA exhaustion analysis for Carter’s First
Amendment claims controlled by the filing date of his original complaint or by the filing
date of his amended complaint?
We agree with Carter that the filing date of the amended complaint controls. If a
prisoner like Carter files a complaint in federal court before exhausting his administrative
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remedies, but subsequently files an amended complaint raising a new claim as to which
exhaustion has been completed, the PLRA’s exhaustion requirement does not bar the newly
asserted, exhausted claims from proceeding.
We start from a proposition set out by the Supreme Court in Jones v. Bock, 549 U.S.
199 (2007): As a general rule, courts should follow their usual practice under the Federal
Rules of Civil Procedure in interpreting the PLRA. See id. at 212 (instructing that courts
applying the PLRA “should generally not depart from the usual practice under the Federal
Rules on the basis of perceived policy concerns”); Garrett, 938 F.3d at 87 (describing
Jones’s teaching that “the usual procedural rules apply to PLRA cases unless the PLRA
specifies otherwise”). In Jones, the Supreme Court applied that baseline understanding to
reject two specialized rules lower courts had applied in the PLRA context. One construed
PLRA exhaustion as “a pleading requirement the prisoner must satisfy in his complaint.”
549 U.S. at 204. But that was contrary, the Supreme Court held, to the “usual practice
under the Federal Rules,” which regarded “exhaustion as an affirmative defense” the
defendant must plead and prove. Id. at 212. The Court likewise rejected a “total exhaustion
rule” that would require dismissal of a prisoner’s entire complaint if some but not all claims
were unexhausted. See id. at 221–22. Again, the Court found no indication that Congress,
through the PLRA’s exhaustion provision, elected to depart from the general rule that “if a
complaint contains both good and bad claims, the court proceeds with the good and leaves
the bad.” Id. at 221.
In short, we are instructed to apply our usual procedural rules to the PLRA question
before us. And that is enough to decide this portion of Carter’s case, because in our circuit,
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“the usual practice” under Rule 15 is to use the date of an amended complaint to conduct a
statutory exhaustion analysis with respect to claims raised for the first time in that amended
complaint. We held as much in Feldman v. Law Enforcement Associates Corp., 752 F.3d
339 (4th Cir. 2014), which dealt with the exhaustion requirement of the Sarbanes-Oxley
Act (SOX). Id. at 345 (first citing 18 U.S.C. § 1514A(b)(1)(A), and then citing 29 C.F.R.
§ 1980.103). There, the plaintiff first filed a complaint raising a claim under the Americans
with Disabilities Act, then exhausted a SOX claim, and then filed an amended complaint
asserting that SOX claim for the first time. Id. at 343, 347. Applying Rule 15 of the Federal
Rules of Civil Procedure, we held that the SOX claim could go forward: Though
unexhausted when the plaintiff filed his original complaint, it had been exhausted before
the filing of the amended complaint – and it was that complaint, not the original, that
controlled the exhaustion inquiry as to claims raised for the first time in the amended
complaint. Id. at 347–48; see Fed. R. Civ. P. 15 (governing amended and supplemental
pleadings). In that sense, the plaintiff’s amended complaint operated to “cur[e]” the
exhaustion defect that otherwise would have prevented his SOX claim from proceeding.
Id. at 347. 5
5
In Feldman, the plaintiff’s SOX claim, though asserted for the first time in his
amended complaint, arose out of the same conduct and occurrences alleged in the original
complaint. 752 F.3d at 347. That circumstance posed an additional complexity:
Ordinarily, the plaintiff’s amended complaint would have “related back” to the date of the
original pleading under Rule 15(c). See id. at 346; Fed. R. Civ. P. 15(c). But on that date,
as noted above, the plaintiff’s SOX claim had yet to be exhausted, so relation back would
have meant the SOX claim could not proceed. Id. We explained that we were “not required
to apply the doctrine of relation back so literally as to carry [the SOX claim] to a time”
when it was unexhausted. Id. at 347. Instead, we construed the amended complaint as a
(Continued)
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Following Jones, we apply the same understanding of Rule 15 and the operation of
amended complaints to the PLRA and Carter’s First Amendment claims. Carter, like the
plaintiff in Feldman, exhausted his First Amendment claims before first introducing them
into this litigation through his amended complaint. And as in Feldman, it is the date of
Carter’s amended complaint, not the date of his original complaint, that controls the
exhaustion analysis. Accordingly, § 1997e(a) of the PLRA does not bar those First
Amendment claims from proceeding.
Our unpublished decision in Hardin v. Hunt, upon which the district court relied, is
not inconsistent with this result. Hardin did observe, as the district court noted, that a
prisoner’s “noncompliance with the PLRA’s exhaustion requirement cannot be ‘cured’ by
amendment under Rule 15.” 2023 WL 3969989, at *3. But that is a reference to a
procedural circumstance not presently before us. In Hardin, the plaintiff raised his claims
in an original complaint, then exhausted, and then filed an amended complaint raising the
same claims. 6 Hardin held a prisoner could not do that. But it did not address the effect
of an amended complaint that raises new claims, introduced into the litigation for the first
supplemental pleading under Rule 15(d), and because supplemental pleadings under Rule
15(d) do not relate back to the date of the original complaint, the later date controlled, and
the plaintiff’s SOX claim was properly exhausted. Id. at 347–48.
6
The plaintiff in Hardin did name new defendants in his amended complaint. 2023
WL 3969989, at *1. But we concluded there that the “mere act” of naming new defendants
did not “create ‘new’ claims for purposes of PLRA exhaustion.” Id. at *3. So, we had no
occasion to consider a situation – like the one before us today – in which new claims are
raised for the first time in an amended complaint after they have been exhausted.
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time only after they have been exhausted. That is the issue addressed in Feldman, a
published decision that pre-dates Hardin, and the issue we resolve today.
The defendants resist this outcome and the application of Feldman, arguing that the
text of the PLRA’s exhaustion requirement is to the contrary. Under the PLRA, they
explain, a prisoner must exhaust administrative remedies before he brings an “action.” See
42 U.S.C. § 1997e(a) (“No action shall be brought . . . until such administrative remedies
as are available are exhausted.”). And Carter, they contend, brought his “action” when he
filed his original complaint, so it is the filing of that complaint, and not the amended
complaint, that must control the exhaustion analysis.
The Supreme Court rejected a very similar argument in Jones. In that case, as noted
above, the Court considered a PLRA-specific “total exhaustion” rule adopted by some
courts, under which a prisoner’s complaint would be dismissed in its entirety if it included
both unexhausted and exhausted claims. 549 U.S. at 220–21. Defenders of that rule, like
the defendants here, zeroed in on the PLRA’s use of the word “action.” See id. An
“action,” they contended, is not the same as a “claim,” and if Congress “intended courts to
dismiss only unexhausted claims while retaining the balance of the lawsuit, the word
‘claim’ rather than ‘action’ would have been used in this provision.” Id. at 220. The Court
disagreed, dismissing the statutory phrase “no action shall be brought” as “boilerplate
language” insufficient to override standard procedural practice. Id. The same reasoning
applies here: Carter raised his First Amendment claim for the first time in his amended
complaint, and the PLRA’s boilerplate reference to “action” does not require that we use
his original complaint as the baseline for measuring exhaustion of that claim. See Mattox,
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851 F.3d at 595 (adopting same approach and explaining that “the Supreme Court [in
Jones] has already rejected the argument that the word ‘action’ in § 1997e(a) means
something different than ‘claim’”); Jackson v. Fong, 870 F.3d 928, 934 (9th Cir. 2017)
(adopting same reasoning because “the Supreme Court squarely rejected relying on the
distinction between ‘action’ and ‘claim’ in the PLRA” in Jones).
We emphasize that the rule we adopt today is fully consistent with the aims of the
PLRA’s exhaustion requirement. As the Supreme Court has explained, a key benefit of
PLRA exhaustion is that it allows a prison to address complaints internally before it is
subjected to the time and expense of litigation. Jones, 549 U.S. at 219; Woodford v. Ngo,
548 U.S. 81, 93 (2006). Allowing a prisoner like Carter to proceed on a claim that is
exhausted before it is first introduced in litigation is in keeping with that goal. Here, prison
officials had a “fair opportunity” to address Carter’s First Amendment claims
administratively before they were required to defend against them in court, just as the
PLRA contemplates. See Mattox, 851 F.3d at 592–93. Indeed, the defendants were not
served with Carter’s original complaint or required to take any action in court until after
Carter had exhausted both his claims and filed his amended complaint. Nothing about this
scenario undermines the defendants’ ability to take corrective action on Carter’s First
Amendment claims before “incurring the hassle and expense of litigation.” Id. at 592.
The PLRA is also intended to promote economy and efficiency for both prison
defendants and the courts, “reduc[ing] the quantity and improv[ing] the quality of prisoner
suits.” Woodford, 548 U.S. at 94. Here, it is the defendants’ position that would undermine
that goal by resulting in more litigation, not less. Under the approach advocated by the
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defendants and adopted by the district court, Carter can go forward with his exhausted First
Amendment claims – but he must do so by filing a separate action rather than by amending
his original complaint to raise new claims that have been exhausted. See Carter, 2024 WL
1356670, at *5–6. “Such a requirement would promote the precise inefficiency the PLRA
was designed to avoid – requiring courts to docket, assign and process two cases where
one would do.” Saddozai, 35 F.4th at 710. In Jones, the Supreme Court rejected a “total
exhaustion” rule for just this reason, explaining that it would require district courts to
“begin [the complaint review] process all over again” when a prisoner refiled a complaint
that included only his exhausted claims. 549 U.S. at 223. Again following Jones’s
guidance, we decline to adopt a rule that would unnecessarily increase the number of
prisoner lawsuits that prisons and federal courts must handle.
For all these reasons, we agree with Carter that his First Amendment claim, pleaded
for the first time in his amended complaint after all available administrative remedies were
exhausted, satisfies the PLRA’s exhaustion requirement. We emphasize again the narrow
nature of this holding. Carter has not asked us to embrace the broader rule adopted by the
Third and Ninth Circuits – under which the PLRA exhaustion requirement is controlled by
an amended complaint as to all claims pleaded in the amended complaint – and we do not
address the merits of such an approach. We hold only that Carter’s First Amendment claim,
because it was not raised in court until after it was exhausted, may proceed consistent with
§ 1997e(a) of the PLRA.
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2.
We turn next, and more briefly, to Carter’s argument respecting exhaustion of his
Eighth Amendment claims. Carter acknowledges that he did not exhaust those claims
before raising them in his original complaint. And as noted above, he does not argue that
this problem can be resolved by virtue of his amended complaint. Instead, he argues on
appeal, as before the district court, that he was not required to exhaust his Eighth
Amendment claims because the VDOC’s grievance process was not genuinely “available”
to him within the meaning of the PLRA.
Under § 1997e(a), a prisoner must exhaust “such administrative remedies as are
available.” That mandate, as the Supreme Court held in Ross, incorporates one “baked
in[]” limit: An inmate need exhaust only those remedies actually available to him. 578
U.S. at 648; Gowen, 130 F.4th at 176; Griffin v. Bryant, 56 F.4th 328, 335 (4th Cir. 2022).
If a prison grievance process is not “meaningfully capable of use to obtain some relief,”
Griffin, 130 F.4th at 335 (internal quotation marks omitted), then an inmate “is considered
to have satisfied the exhaustion requirement” without more, Gowen, 130 F.4th at 176. This
includes cases in which “1) the administrative procedure is ‘a simple dead end’ – in other
words, the prison officials are ‘unable or consistently unwilling to provide any relief’; 2)
the process is ‘so opaque’ that it becomes practically ‘incapable of use’ such that ‘no
ordinary prisoner can discern or navigate it’; or 3) the prison ‘thwart[s] inmates from taking
advantage of a grievance process through machination, misrepresentation, or
intimidation.’” Id. (alteration in original) (quoting Ross, 578 U.S. at 643–44).
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Although Carter presented the question to the district court, the district court did not
address whether the VDOC grievance process was available to Carter within the meaning
of Ross. See generally Carter, 2024 WL 1356670. 7 We follow our usual practice and
remand to the district court to consider this question in the first instance. See Doe v. N.C.
State Univ., 125 F.4th 498, 507 (4th Cir. 2025) (emphasizing that we are “a court of review,
not of first view”). That course is especially appropriate here. Whether administrative
remedies are meaningfully available under Ross is a fact-intensive inquiry that may turn
on the details of “how [a] grievance procedure actually operates and is carried out by []
prison officials,” or other specific circumstances. Griffin, 56 F.4th at 336; see also id. at
338–39 (remanding for further factual development necessary to resolve the “availability”
question). Here, there has been no factual development at all as to how the VDOC
grievance procedures actually operate, or as to Carter’s contention that he was “thwarted”
from completing the administrative process on his Eighth Amendment claim when his June
2022 informal complaint was met with retaliatory threats from the defendants.
Accordingly, we remand Carter’s Eighth Amendment claims to the district court to
consider in the first instance the availability of administrative remedies under Ross, and for
any “appropriate discovery and development of the record” in aid of that inquiry. Griffin,
56 F.4th at 338–39.
7
Our point is not to fault the district court for this oversight. The papers submitted
in the district court by Carter, then proceeding pro se, were voluminous, mostly
handwritten, and sometimes hard to parse.
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* * * *
For the reasons given above, we vacate the district court’s award of summary
judgment to the defendants on exhaustion grounds. As to Carter’s First Amendment
claims, we hold that Carter properly exhausted any available administrative remedies. As
to Carter’s Eighth Amendment claims, we remand for consideration, in the first instance,
of whether the VDOC grievance process was “available” to Carter within the meaning of
Ross.
B.
Our vacatur of the district court’s grant of summary judgment on exhaustion
grounds does not fully resolve this appeal. That is because, as outlined above, the district
court also held that Carter failed to state a plausible Eighth Amendment claim against
Clarke and failed to state plausible First Amendment retaliation claims against McCoy and
Cabell. See J.A. 137–38 (Eighth Amendment claim against Clarke); Carter, 2024 WL
1356670, at *6 (First Amendment claims against McCoy and Cabell). If that were correct,
we could affirm the dismissal of those claims, at least, on this alternative ground. But
Carter maintains that both of these decisions were incorrect, so we address them now.
We review de novo the district court’s dismissal for failure to state a claim, which
proceeded under a 42 U.S.C. § 1915A screen as to the Eighth Amendment claim, J.A. 137,
and under a Rule 12(b)(6) analysis as to the First Amendment claims, Carter, 2024 WL
1356670, at *2. See Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015); Gowen, 130
F.4th at 171. Dismissal in these circumstances is only proper if, after accepting all the
allegations in the complaint as true and drawing all reasonable inferences in favor of the
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plaintiff, the complaint fails to state a plausible claim for relief. Gowen, 130 F.4th at 171.
Moreover, where, as here, a complaint “implicates a civil rights interest, we must not
dismiss [it] 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.” Id.
(internal quotation marks omitted). And, because Carter filed his amended complaint pro
se, we must liberally construe his allegations. Id.
We first address Carter’s Eighth Amendment claim against Clarke, the director of
the VDOC while Carter was confined in Sussex State Prison’s Restrictive Housing Unit in
2022. As the district court explained, Carter seeks to hold Clarke liable for the allegedly
unconstitutional conditions of confinement he experienced in the RHU under a theory of
supervisory liability. But the district court believed Carter had failed to state a claim for
such liability, because he did not allege that “Clarke had any knowledge of [Carter’s]
specific conditions.” J.A. 138. It was not enough, the court reasoned, that Carter’s
complaint alleged facts from which it could be inferred that Clarke “had knowledge, in the
abstract,” of the conditions of which Clarke complained. Carter could go forward only if
he also alleged that Clarke “had knowledge of the fact that plaintiff,” specifically, faced
unconstitutional conditions of confinement. J.A. 300.
We agree with Carter that the district court erred in this regard. To establish
supervisory liability under 42 U.S.C. § 1983, a plaintiff must satisfy three elements. The
first – the one on which the district court relied – requires a plaintiff to allege “that the
supervisor had actual or constructive knowledge that his subordinate was engaged in
conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens
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like the plaintiff.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (emphasis added;
internal quotation marks omitted). 8 Carter was not required to show that Clarke was
monitoring his incarceration, in particular, and was aware that he, specifically, was subject
to unconstitutional conditions. If Clarke knew that his subordinates had created widespread
unconstitutional conditions of confinement, posing an “unreasonable risk” to prisoners like
Carter, that would be sufficient to satisfy this element. Id. And the district court itself
seems to have believed that Carter’s complaint did make this showing, sufficiently alleging
that Clarke was aware “in the abstract” of the allegedly unconstitutional conditions. J.A.
300.
Because the district court failed to consider Carter’s supervisory liability claim
against Clarke under the correct legal standard, we vacate its dismissal of that claim and
remand for reconsideration. If the district court finds that Carter may be deemed to have
exhausted his Eighth Amendment claims because administrative remedies were not
available to him under Ross, then it should reconsider whether Carter has properly alleged
a supervisory-liability claim against Clarke. 9
8
Carter also must sufficiently allege that Clarke’s response to this knowledge was
“so inadequate as to show deliberate indifference to or tacit authorization” of the alleged
unconstitutional conditions, and that there was “an affirmative causal link” between
Clarke’s inaction and an injury suffered by Carter. Shaw, 13 F.3d at 799 (internal quotation
marks omitted). The district court did not consider whether Carter adequately alleged these
elements but may do so on remand as necessary.
9
On appeal, the defendants also argue that Carter’s amended complaint failed to
plausibly state an Eighth Amendment conditions of confinement claim at all, against any
of the defendants. Neither Carter nor the defendants briefed this argument below, so the
district court never had a chance to address it. Following our usual practice, we decline to
(Continued)
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Next are Carter’s First Amendment retaliation claims against McCoy and Cabell.
Those claims, recall, are premised on comments Branch allegedly made to Carter following
Carter’s informal complaint requesting transfer out of the RHU and into reentry
programming. According to Carter, Branch approached him two weeks after denying his
informal complaint and said: “Stop writing me up Carter, you[‘re] really not going to get
reentry now.” J.A. 113. Carter again asked for a transfer, and Branch replied that “McCoy
and Cabell weren’t having that especially after [Carter] wrote them up about not getting
reentry.” Id.
To state a plausible First Amendment retaliation claim, Carter’s allegations must
show that (1) “he engaged in protected First Amendment activity,” (2) “the defendant[s]
took some action that adversely affected his First Amendment rights,” and (3) there was a
“causal relationship between his protected activity and the defendant[s’] conduct.” Gowen,
130 F.4th at 173. The district court held that Carter did state a plausible First Amendment
claim against Branch: Carter’s submission of the informal complaint constituted protected
First Amendment activity; Branch’s denial of Carter’s grievance – effectively a denial of a
transfer – “could well constitute an adverse action”; and from Branch’s alleged statements
to Carter, a causal nexus could be inferred. Carter, 2024 WL 1356670, at *6. But the
district court dismissed Carter’s retaliation claims against McCoy and Cabell. In its view,
Branch’s alleged statements did “not implicate [] McCoy or Cabell”: They did not
undertake this inquiry in the first instance. The district court may address this argument
on remand as it sees fit. See Doe, 125 F.4th at 507.
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establish that those defendants knew of Carter’s informal complaint or “did more than
interact with [Carter] in passing.” Id. at *7.
We disagree with district court’s assessment as to McCoy and Cabell. As the district
court itself recounted, Carter’s complaint alleges that he regularly complained to McCoy
and Cabell, as well as to Branch, about his need for his reclassification and transfer out of
the RHU, suggesting more than “passing” interactions. Id. at *6–7. And critically,
according to Carter, Branch told him that “McCoy and Cabell weren’t having that” –
Carter’s reclassification and transfer – “especially after I [Carter] wrote them up about not
getting reentry.” J.A. 113. That is of course just an allegation; maybe Branch said no such
thing. Or maybe Branch is an unreliable narrator, and McCoy and Cabell said no such
thing. But for now, we take these allegations as truthful and draw all inferences in favor
of Carter. Gowen, 130 F.4th at 171. And from these allegations, it reasonably can be
inferred that McCoy and Cabell, like Branch, played a role in denying Carter a transfer
because Carter “wrote them up,” J.A. 113, a form of protected activity. For the reasons
given by the district court with respect to Branch, those inferences are enough, at this early
stage of the litigation, to satisfy the elements of Carter’s First Amendment claim. See
Carter, 2024 WL 1356670, at *6.
We emphasize that we take no position on the veracity of these allegations or the
ultimate merits of Carter’s First Amendment claims. But particularly in light of the liberal
construction we must give Carter’s amended complaint, which was filed pro se, those
allegations are sufficient to withstand a motion to dismiss under Rule 12(b)(6).
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III.
For the foregoing reasons, we vacate the district court’s grant of summary judgment
to the defendants on exhaustion grounds. We likewise vacate the district court’s alternative
dismissals of the Eighth Amendment supervisory liability claim against defendant Clarke
and the First Amendment retaliation claims against defendants McCoy and Cabell. We
remand to the district court for further proceedings consistent with this opinion.
VACATED AND REMANDED
26