–20. 
Such equitable tolling applies, however, only

when the prisoner shows “(1) that he ha[d] been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.”
          Id. at 718 
(quoting Pace v.

DiGuglielmo, 
544 U.S. 408
, 418 (2005)). In Battle, we found equitable tolling appropriate

because the plaintiff had in fact diligently pursued his § 1983 claim through the prison

administrative process and, in view of the exhaustion requirement, he “face[d] a complete

and absolute barrier to litigation of any § 1983 claim” during those administrative

proceedings.
 Id. at 719. 
Explaining the logical necessity for such a conclusion, we stated

that “refusal to toll limitations during the PLRA’s mandatory exhaustion period would trap

prisoners in a ‘catch-22’: one who files suit prior to exhausting administrative remedies

risks dismissal based upon § 1997e [of the PLRA]; whereas the prisoner who waits to

exhaust his administrative remedies risks dismissal based upon untimeliness.”
 Id. at 718
(cleaned up).



                                            12
       While Battle’s holding was made in the context of a § 1983 claim and Fauconier

seeks tolling with respect to an ADA claim, the ADA is nonetheless a “Federal law” subject

to the PLRA’s exhaustion requirement, 42 U.S.C. § 1997e(a), and therefore Battle’s

rationale for tolling the limitations period pending exhaustion of administrative remedies

of prisoners’ § 1983 claims also applies to prisoners’ ADA claims.

       In this case, Fauconier adequately demonstrated the requirements for federal

equitable tolling. His complaint indicates (1) that the VDOC last refused to hire him on

October 25, 2013; (2) that he initiated the internal grievance process promptly by filing an

informal grievance five days later, on October 30, 2013; and (3) that he followed the

internal process diligently until the Regional Administrator concluded on January 8, 2014,

that the claim was “unfounded.” Because the PLRA’s mandatory exhaustion requirement

barred him from filing this suit until the conclusion of administrative proceedings and

because Fauconier pursued the exhaustion of administrative remedies diligently, the

running of the limitations period for Fauconier’s ADA claim should have been tolled

during the period from October 30, 2013 to January 8, 2014, meaning that the claim was

timely even under a one-year limitations period.

       At bottom, we conclude that Fauconier’s ADA and § 1983 equal protection claims

were both timely filed.


                                III. Failure to state a claim

       Fauconier next contends that the district court erred in concluding that his complaint

failed to state a plausible claim under either Title II of the ADA or the Equal Protection


                                             13
Clause. With respect to his ADA claim, he argues that he is disabled because of “a chronic

autoimmune disease and a record of episodic hospitalizations due to that disease,” and,

even if he may not have effectively alleged a “disability,” he has surely alleged that the

VDOC “clearly regarded him as disabled.” VDOC officials uncontrovertibly denied him

jobs because of his medical classification, as that was the only reason they provided to

justify Fauconier’s exclusion from prison employment. And as to his § 1983 equal

protection claim, Fauconier argues that his complaint sufficiently alleged that “[h]e was

treated differently from similarly situated individuals who were allowed to work” and that

this disparate treatment was not justified.

       The pleading requirements for surviving a Rule 12(b)(6) motion are well

established. “[A] complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face’” in the sense that the complaint’s factual

allegations allow “the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 
556 U.S. 662
, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 
550 U.S. 544
, 570 (2007)). Moreover, “where, as here, there is a pro se

complaint raising civil rights issues,” “liberal construction of the pleadings is particularly

appropriate.” Martin v. Duffy, 
858 F.3d 239
, 248 (4th Cir. 2017) (cleaned up).

       With these principles in hand, we now turn to address Fauconier’s claims under the

ADA and the Equal Protection Clause.




                                               14
                                        A. ADA claim

       Title II of the ADA provides that no qualified individual shall, “by reason of [a]

disability,” be denied the benefits of public “services, programs, or activities” or be subject

to discrimination by a public entity. 42 U.S.C. § 12132. The term “disability” is defined

by the Act to mean “a physical or mental impairment that substantially limits one or more

major life activities,” “a record of such an impairment,” or “being regarded as having such

an impairment.”
 Id. § 12102(1). And 
the Act further provides that an individual is

“regarded as having” a qualifying impairment “if the individual establishes that he or she

has been subjected to an action prohibited under this chapter because of an actual or

perceived physical or mental impairment whether or not the impairment limits or is

perceived to limit a major life activity.”
 Id. § 12102(3)(A) (emphasis 
added). Thus, to

state a cause of action under Title II, an individual must plausibly allege (1) that he has a

disability or has been regarded as having a disability; (2) that he is otherwise qualified to

receive the benefits provided by a public entity; and (3) that he was denied those benefits

or was otherwise discriminated against on the basis of his disability. See Wicomico Nursing

Home v. Padilla, 
910 F.3d 739
, 750 (4th Cir. 2018). We conclude that Fauconier has

plausibly alleged facts in his complaint satisfying all three requirements, particularly when

given the benefit of liberal construction that we afford to pleadings filed by pro se plaintiffs.

       The complaint alleged (1) that Fauconier was hospitalized on October 14, 2010, as

he had been on other occasions, to receive treatment for a medical condition; (2) that when

he returned from the hospital and sought to continue his prison job, he was denied the job

as well as other positions thereafter, even though he was well able to perform the relevant

                                               15
tasks for those positions; and (3) that the reason the VDOC gave for denying him prison

jobs after his October 2010 hospitalization was his medical classification. The complaint

supported these facts by attaching an exhibit in which the VDOC explained why Fauconier

was denied prison jobs: “Your medical work code is ‘D.’ Medical work code ‘D’ means

no work, making you ineligible for all jobs.” Indeed, in their motion to dismiss Fauconier’s

complaint, the defendants acknowledged:

       In 2010, Fauconier was removed from an institutional job assignment
       because he was deemed medically unfit to work. Subsequent job applications
       were also denied on the grounds that his medical condition precluded
       institutional employment.

(Emphasis added).

       The defendants argue that the complaint failed to include sufficient information to

determine whether Fauconier’s medical condition constituted a qualifying disability under

the ADA. But they do not address his argument that, at the very least, VDOC officials

regarded him as disabled, as reflected in their statement that persons with a medical

condition such as Fauconier’s are “ineligible for all jobs.” Thus, the complaint contains

enough information to plausibly allege that VDOC officials, relying on Fauconier’s

medical classification, regarded him as having a disability that made him unable to work,

thus satisfying the first element of an ADA claim.

       The complaint also alleged adequately that Fauconier was otherwise qualified to

participate in the prison work program. It alleged that he worked at numerous jobs at the

prison and did them well. Specifically, Fauconier asserted that he received “satisfactory

or better job performance reviews” even though he suffered from the same medical


                                            16
condition prior to his October 2010 hospitalization. In addition, the complaint alleged that,

following Fauconier’s prior hospitalizations, he had always been allowed to return to his

then-current job, which he had performed competently. It further alleged that his medical

classification did not change after his October 2010 hospitalization and that he remained

well able to perform the job that he had been performing, a “houseman.” In short,

Fauconier plausibly alleged that he satisfactorily performed jobs with similar requirements

in the past and that nothing about his ability to do so changed as a result of his October

2010 hospitalization, which lasted no more than a day.

       Finally, the allegations adequately support the inference that VDOC officials denied

Fauconier prison employment because they regarded him as disabled.              Indeed, they

expressly relied on his medical classification, explaining that he was “ineligible for all

jobs” because of the medical condition underlying that classification.

       At bottom, we conclude that Fauconier plausibly alleged a violation of Title II of

the ADA.


                                 B. Equal protection claim

       The Equal Protection Clause, which prohibits States from denying persons “the

equal protection of the laws,” U.S. Const. amend. XIV, § 1, “keeps governmental

decisionmakers from treating differently persons who are in all relevant respects alike,”

Nordlinger v. Hahn, 
505 U.S. 1
, 10 (1992). And to state a claim for violation of the Clause,

a plaintiff must plausibly allege first “that he has been treated differently from others with

whom he is similarly situated and that the unequal treatment was the result of intentional


                                             17
or purposeful discrimination.” 
Martin, 858 F.3d at 252 
(cleaned up). But that showing

does not secure the claim, as the plaintiff must also plausibly allege that the disparity was

not justified under the appropriate level of scrutiny.
 Id. To account for 
the unique health

and welfare concerns in the prison context, our review of a plaintiff’s challenge to a prison

decision or policy is more demanding, as we “accord deference to the appropriate prison

authorities.” Turner v. Safley, 
482 U.S. 78
, 85 (1987). Under this deferential standard, the

prisoner must allege that “the disparate treatment [was not] reasonably related to any

legitimate penological interests.” Veney v. Wyche, 
293 F.3d 726
, 732 (4th Cir. 2002)

(cleaned up). And this evaluation is, in turn, guided by the factors set forth in 
Turner, 482

U.S. at 89
–91. In particular, as we explained in Veney:

       Three of the four [Turner] factors are relevant to [an] equal protection claim.
       “First, there must be a ‘valid, rational connection’ between the prison
       regulation and the legitimate governmental interest put forward to justify it.”
       
Turner, 482 U.S. at 89
. Second, 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.”
 Id. at 90–91 
(“This is not a ‘least restrictive alternative’
       test: prison officials need not set up and then shoot down every conceivable
       alternative method of accommodating the claimant’s constitutional
       
complaint.”).

293 F.3d at 732 
(cleaned up).

       Against these demanding requirements, Fauconier’s complaint is, to be sure,

somewhat thin, even as we recognize that he proceeded pro se in drafting it. Nonetheless,

he did allege that he was treated differently than others purportedly similarly situated. His

complaint states that when he returned from hospitalization, he was required to reapply for

the job he had held, affording prison officials the opportunity to deny his application on

                                              18
the basis of his medical status. He alleged that this process was different from the way two

other inmates were treated. Specifically, he explained that at least two other inmates, who

are named in the complaint, returned from hospitalization “[o]n multiple occasions” but

were not required to reapply for their houseman positions. They were simply allowed to

resume working at the jobs they had held prior to their hospitalizations. And the complaint

alleged more broadly, “comparing [his] case to the myriad of other cases of similarly

situated prisoners at [Powhatan Correctional Center], in this instance, [he] was clearly

treated differently.” These allegations implicate the heart of the protection afforded by the

Equal Protection Clause.

       The district court reasoned that the absence of any allegation that the comparators

were classified with Work Code D medical status made Fauconier’s comparison an

inappropriate one, and the defendants argue along similar lines. But Fauconier was not

required to allege that his proffered comparators also had the Work Code D medical status.

Rather, it was sufficient for him to allege that, like him, the two comparators had been

hospitalized “multiple” times but were nonetheless able to perform their prison jobs.

Unlike Fauconier, however, the comparators were allowed to return to their prison jobs

without the necessity of applying for them.        Moreover, Fauconier also alleged by

implication that his disparate treatment was not an error but deliberate, as he continued to

apply for several other jobs and was rejected for each because of his medical status.

       In addition to disparate treatment, Fauconier’s complaint also alleged the lack of a

legitimate justification for the VDOC’s blanket application of Work Code D medical status

to deny employment to all persons with that status. Specifically, although the VDOC has

                                             19
a legitimate penological interest in protecting the health and welfare of those in its custody,

Fauconier plausibly alleged that its categorical exclusion of Work Code D inmates from

employment was insufficiently calibrated to protect that interest. Neither of the parties

describe the criteria for assigning an inmate the Work Code D medical status or what such

status signifies in terms of an inmate’s physical condition. In addition, although the

defendants confirm that inmates with Work Code D status are not permitted to work, they

do not explain the connection between the designation and an inmate’s ability to work.

Yet, Fauconier’s complaint alleged that, notwithstanding his classification as a Work Code

D inmate, he did in fact satisfactorily perform the job of houseman before his brief October

2010 hospitalization. And it further alleged that, after that hospitalization, he was still able

to perform the same tasks at the same level. These allegations thus imply irrationality

insofar as the medical classification policy did not operate to deny Fauconier work as a

houseman before his hospitalization but did so after his return, despite the lack of any

change in his ability or the requirements of the job. Indeed, Fauconier’s allegations suggest

that he worked in several different jobs while assigned the Work Code D status and

consistently received satisfactory reviews. Yet, despite his demonstrated ability to perform

in a variety of positions, the Work Code D medical status “automatically disqualified [him]

from seeking any employment as a prisoner,” and his applications for at least four other

jobs with differing requirements were accordingly rejected. (Emphasis added).

       Taking Fauconier’s allegations as true, as we must, it is at least plausible that the

VDOC’s policy of categorically restricting inmates with Work Code D medical status from

“all jobs” was not rationally connected to its interest in protecting inmate health and

                                              20
welfare. Moreover, as to the other Turner factors, the fact that Fauconier was previously

employed with Work Code D medical status suggests both that he could work with minimal

impact on prison operations and that there were reasonable alternatives to the VDOC’s

categorical denial of employment to Work Code D inmates. We therefore conclude that

the allegations of Fauconier’s complaint plausibly satisfied each of the relevant Turner

factors.

       Thus, particularly when we apply a liberal construction to Fauconier’s pro se

complaint, we find that it sufficiently alleged an equal protection claim.


                           IV. Eleventh Amendment immunity

       The district court dismissed all damages claims against the defendants in their

official capacity on the ground that the defendants were immune under the Eleventh

Amendment, which generally bars actions for damages against unconsenting States. The

Amendment provides that “[t]he Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. And the Supreme Court has held that the Amendment renders “an

unconsenting State . . . immune from suits brought in federal courts” not only by citizens

of another State but also by citizens of the unconsenting State. Edelman v. Jordan, 
415

U.S. 651
, 663 (1974). But it has also recognized that this immunity may be abrogated by

an appropriate act of Congress. See Board of Trs. of Univ. of Ala. v. Garrett, 
531 U.S. 356
,

363 (2001).


                                             21
       Fauconier’s damages claims against the defendants — state officials sued in their

official capacity — amount to claims against the State. Specifically, because “a suit against

a state official in his or her official capacity is not a suit against the official but rather is a

suit against the official’s office,” it is “no different from a suit against the State itself.” Will

v. Mich. Dep’t of State Police, 
491 U.S. 58
, 71 (1989). Moreover, whereas 42 U.S.C.

§ 1983 permits suit against “every person” who deprives an individual of his or her rights

under color of state law, neither States nor state officials acting in their official capacities

constitute “persons” within the meaning of the statute when sued for monetary relief.
 Id.

       Consequently, we affirm 
the district court’s order dismissing Fauconier’s § 1983

equal protection claim for damages, based on Eleventh Amendment immunity.

       The analysis for Eleventh Amendment immunity for claims under the ADA,

however, is different, as such immunity was purportedly abrogated by Congress. In

enacting Title II of the ADA, Congress made it specifically applicable to the States and

state entities, such as state prisons. See Pa. Dep’t of Corr. v. Yeskey, 
524 U.S. 206
, 210

(1998). And while the States are generally immune from private damage actions by reason

of the Eleventh Amendment, the Supreme Court in United States v. Georgia held that

“insofar as Title II [of the ADA] creates a private cause of action for damages against the

States for conduct that actually violates the Fourteenth Amendment, Title II validly

abrogates state sovereign immunity.” 
546 U.S. 151
, 159 (2006).

       In this case, therefore, because Fauconier has plausibly alleged violations of both

Title II of the ADA and the Fourteenth Amendment, the defendants are not entitled to

Eleventh Amendment immunity at this juncture. Thus, we vacate this aspect of the district

                                                22
court’s Eleventh Amendment immunity ruling, permitting Fauconier’s ADA claims for

damages against the defendants in their official capacity — i.e., effectively, claims made

against the State — to proceed.


                                   V. Qualified immunity

       The district court dismissed all damages claims against the defendants in their

individual capacity because of qualified immunity.

       “Qualified immunity shields federal and state officials [individually] from money

damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 
563 U.S. 731
, 735 (2011) (citation omitted).

And for a right to be clearly established, it must be “sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Mullenix v. Luna,

136 S. Ct. 305
, 308 (2015) (citation omitted).

       In this case, Fauconier has not and cannot establish that every reasonable official

would have believed that the officials’ actions here, which were apparently consistent with

the VDOC’s policy, were unlawful. And none of Fauconier’s allegations establish that the

defendants were “plainly incompetent or . . . [that they] knowingly violate[d] the law.”

al-Kidd, 563 U.S. at 743 
(citation omitted). If, as it appeared to the defendant officials

when confronted with Fauconier’s Work Code D status, there were no circumstances under

which it would be safe or possible for Fauconier to work, then the defendants did not violate

clearly established law by excluding Fauconier from prison employment on that basis.


                                              23
       Accordingly, we affirm the district court’s dismissal of Fauconier’s claims for

damages against the defendants in their individual capacities.


                                   VI. Injunctive relief

       Finally, Fauconier challenges the district court’s ruling dismissing his claims for

injunctive relief as moot. The court reasoned that Fauconier’s transfer out of Powhatan

Correctional Center mooted his claims as to the three defendants employed there because

those officials no longer had authority over Fauconier’s applications for employment. And

as to VDOC Director Clarke, the court reasoned that, while he remains Director and thus

continues to oversee VDOC policies, Fauconier’s claim “is predicated not on the text of

VDOC operating procedures but rather on the allegedly improper and discriminatory

actions of officials” that took place while Fauconier was housed at Powhatan Correctional

Center.

       We agree with the district court’s reasoning as to the three defendant officials who

worked at Powhatan Correctional Center and therefore affirm the court’s conclusion that

Fauconier’s claims for injunctive relief against them are moot. We do not agree, however,

with the same ruling as to VDOC Director Clarke.

       While Fauconier did, in his complaint, challenge the discriminatory actions of

officials at the Powhatan Correctional Center, he also alleged that he was challenging the

VDOC’s “policies and actions.”      (Emphasis added).      Moreover, he alleged that the

VDOC’s policies excluded him from “all work programs and all apprenticeship programs

offered by [Powhatan Correctional Center] and [the VDOC,] both public entities.”


                                            24
(Emphasis added). While Fauconier has been reassigned to another facility within the

VDOC, his complaint sufficiently alleged that the new facility was also subject to the same

policies as Powhatan Correctional Center — policies overseen by Clarke — and that

Fauconier was still subject to the challenged policy. Moreover, although it is undisputed

that the VDOC has since reclassified Fauconier as a Work Code C inmate, the VDOC has

not “made it absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Wall v. Wade, 
741 F.3d 492
, 497 (4th Cir. 2014) (quoting Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 
528 U.S. 167
, 189 (2000)). Thus, the

complaint demonstrates Fauconier’s legally cognizable interest in seeking prospective

injunctive relief to prevent enforcement of the policy he challenges. See Already, LLC v.

Nike, Inc., 
568 U.S. 85
, 91 (2013).

       The defendants argue for a different result, relying on language from our decision

in Incumaa v. Ozmint, 
507 F.3d 281 
(4th Cir. 2007). In Incumaa, an inmate challenged

policies that were only in place at a maximum security unit where the inmate was no longer

housed and had not been housed for over two years.
 Id. at 282. 
As a result, the court

refused to provide an opinion that “would [have been] advisory in the truest sense,” given

that the policies applicable to the maximum security unit and the facility where the inmate

then resided were “similar, but not identical.”
 Id. at 289. 
But here, the VDOC policy that

Fauconier challenges allegedly applies across all VDOC facilities.

       In short, we conclude that the district court correctly dismissed Fauconier’s claims

for injunctive relief against the three officials at Powhatan Correctional Center but erred in

dismissing them against defendant Clarke in his official capacity.

                                             25
                               *      *       *

For the reasons given, the judgment of the district court is

                                                               AFFIRMED IN PART,
                                                               REVERSED IN PART,
                                                                 AND REMANDED.




                                      26
WILKINSON, Circuit Judge, dissenting:

       One of the oldest axioms in our profession is that “hard cases make bad law.” N.

Secs. Co. v. United States, 
193 U.S. 197
, 400 (1904) (Holmes, J., dissenting). This is one

of those cases. It draws the federal courts into the minutiae of state penal administration

and undermines the deferential nature of the rational basis test, a bedrock legal rule that

protects our Constitution’s federalist structure. Put plainly, the majority’s ruling is

destructive of the balance between federal and state governments.

       Deference to anyone may be less in fashion in the federal courts these days. There

was a time, however, when jurists would recognize that our review of the plaintiff’s Equal

Protection Clause claim was a doubly deferential one. The plaintiff is a member of no

suspect classification and the State has infringed no fundamental right, so searching judicial

review is inappropriate. See City of Cleburne v. Cleburne Living Center, 
473 U.S. 432
, 440

(1985) (explaining when courts must apply heightened scrutiny to government actions

under the Equal Protection Clause). But see Majority Op., ante at 19 (asserting without

support that this case “implicate[s] the heart of the protection afforded by the Equal

Protection Clause”). Rather, the State has classified prisoners on the basis of medical

conditions, which is presumptively permissible and reviewed under traditional—and

deferential—rational basis scrutiny. See Doe v. Univ. of Md. Med. Sys. Corp., 
50 F.3d 1261
,

1267 (4th Cir. 1995).

       The rational basis test exists for a reason. It keeps the federal courts out of places

where they do not belong. It requires respect for the State’s exercise of its historic police

powers. The defendants’ policy of medical classifications is “presumed to be valid and will

                                             27
be sustained if the classification drawn by the [policy] is rationally related to a legitimate

state interest.” 
Cleburne, 473 U.S. at 440
. Further, “a classification ‘must be upheld against

equal protection challenge if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification.’” Heller v. Doe, 
509 U.S. 312
, 320 (1993)

(quoting FCC v. Beach Commc’ns, Inc., 
508 U.S. 307
, 313 (1993)). Moreover, “the

‘burden is on the one attacking the [policy] to negative every conceivable basis which

might support it.’” Armour v. City of Indianapolis, 
566 U.S. 673
, 681 (2012) (quoting 
Doe,

509 U.S. at 320
). 1

       Government actions reviewed under the rational basis test are thus “overwhelmingly

likely to be upheld” because of the deference courts must give them. Mario L. Barnes &

Erwin Chemerinsky, Essay, The Once and Future Equal Protection Doctrine?, 
43 Conn.

L
. Rev. 1059, 1077 (2011). And the deference that inheres in the rational basis test is

doubled when courts consider a policy in the context of prison administration.

       The Supreme Court has put it plainly: “it is ‘difficult to imagine an activity in which

a State has a stronger interest, or one that is more intricately bound up with state laws,

regulations, and procedures than the administration of its prisons.’” Woodford v. Ngo, 548


1
  The plaintiff must also show he was treated differently than other similarly situated
individuals. See Martin v. Duffy, 
858 F.3d 239
, 252 (4th Cir. 2017). The plaintiff’s showing
with respect to this is insufficient. He points to two fellow inmates he claims were similarly
situated to him but treated differently—i.e., that they were allowed to return to their prison
jobs without reapplying for them after being hospitalized. Appellant Br. 35–36. But the
plaintiff pleads no facts suggesting they were similarly situated. He pleads merely that they
too were hospitalized. J.A. 10. But he does not plead that they were afflicted with medical
conditions like he was or even that they were Code D inmates. Aside from the fact they
were hospitalized, we know nothing about these two individuals or whether they were
similarly situated to the plaintiff in any meaningful way.
                                             
28
U.S. 81
, 94 (2006) (quoting Preiser v. Rodriguez, 
411 U.S. 475
, 491–92 (1973)). The Court

has warned against what is happening here, namely “unnecessarily . . . perpetuat[ing] the

involvement of the federal courts in affairs of prison administration.” Procunier v.

Martinez, 
416 U.S. 396
, 407 (1974). To implement this command, “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.” Veney v. Wyche, 
293 F.3d 726
, 732

(4th Cir. 2002). For a state’s integrity is intimately linked to its capacity to operate its own

institutions. Take away these managerial responsibilities and there is left less a vibrant

organ of self-governance than a hollow shell.

       Under rational basis scrutiny in the prison context, a “prison regulation is valid if it

is reasonably related to legitimate penological interests.” Turner v. Safley, 
482 U.S. 78
, 89

(1987). The State’s policy of medical classifications easily clears this bar.

       The majority acknowledges that the State has a legitimate penological interest in

protecting the health and safety of its inmates, Majority Op., ante at 19–20, as indeed it

must. “Prison administrators have . . . [a] duty to take reasonable measures for the

prisoners’ own safety.” Washington v. Harper, 
494 U.S. 210
, 225 (1990). If an inmate were

to suffer a serious health reversal while performing work in prison, that would not only be

unfortunate on its own terms, but it could also expose the State to potential liability. This

is quite wrong. The state has not exhibited here a “deliberate indifference” to a serious

medical need. See Estelle v. Gamble, 
429 U.S. 97
, 104 (1976). It has practiced preventive

medicine for which the majority now proposes to subject it to a spate of equal protection

lawsuits.

                                              29
       The means that the State has adopted are well-suited to further its manifest

legitimate interest. Doctors assign three relevant codes to inmates upon their incarceration

based on their medical conditions and ability to work. See J.A. 87. Relevant here: Code A

permits full work and carries no activity restrictions; Code C allows light work and rules

out strenuous physical activity like weightlifting; Code D prohibits work and sports

activities except for walking. See J.A. 87. It is entirely rational for the State to rely on the

opinions of medical professionals to classify prisoners according to the severity and nature

of their health conditions. The plaintiff does not dispute the qualifications of the physicians

who made his classification decision, and indeed those physicians are not even parties in

this case.

       The majority focuses on the inflexible nature of a Code D designation, effectively

ruling that prisoners medically diagnosed with serious medical conditions cannot be

uniformly barred from working. But the majority’s characterization of this system as

inflexible is belied by the record. The State’s policy calls for regular reviews of an inmate’s

designation “any time a change of the offender’s condition is identified to ensure it reflects

the current medical status of the offender.” J.A. 86. Prisoners with chronic health

conditions are to “be monitored at a minimum of every six months.” J.A. 77. More

generally, the policy makes clear that a “physician shall change the offender’s medical

classification code whenever the offender’s condition so indicates.” J.A. 76. Indeed, the

plaintiff’s own designation was changed to Code C after an additional examination by a

doctor. Consistent with that classification, he is now allowed to work again. The



                                              30
inflexibility the majority insists makes the State’s system devoid of rationality does not

even exist under the facts of this case.

       Failing to properly apply the doubly deferential standard of review applicable in this

case, the majority seeks to substitute its own judgment for that of the medical professionals

the State relies on. For the majority, it is irrational to allow doctors to designate some

prisoners as categorically unable to work safely after individualized examinations, even

though the policy requires doctors to periodically reevaluate the classifications. The

majority has a better idea, requiring another case-by-case evaluation of each prisoner’s

ability to work by prison administrators whenever a request to work is made by a Code D

inmate. See Majority Op., ante at 19–21. Prison officials lack not only the resources to

make these myriad classification calls, but also the medical expertise to render them.

Indeed, that is why we have doctors.

       But even that is not enough for the majority. It holds that yet another case-by-case

evaluation by the federal courts may be necessary whenever a Code D inmate is dissatisfied

with a judgment that he is medically unable to work.
 Id. And then we 
must, somehow,

review a doctor’s decision that a prisoner cannot safely work. The federal courts are bereft

of both the resources and the knowledge to review the volume of classification claims that

will surely arise from inmates who wanted one job or another that medical professionals

felt ill-advised. See, e.g., 
Procunier, 416 U.S. at 405 
(explaining that “courts are ill

equipped to deal with the” “complex and intractable” “problems of prison administration,”

which “are not readily susceptible of resolution by decree”).



                                             31
       It is the very essence of government that it be able to govern by classifications,

which by necessity are over- and under-inclusive to some extent. See Pers. Adm’r of Mass.

v. Feeney, 
442 U.S. 256
, 271–72 (1979) (“Most laws classify, and many affect certain

groups unevenly . . . .”). This is so because “[t]he problems of government are practical

ones and may justify, if they do not require, rough accommodations—illogical, it may be,

and unscientific.” Metropolis Theatre Co. v. City of Chicago, 
228 U.S. 61
, 69–70 (1913).

And “[t]he calculus of effects, the manner in which a particular [policy] reverberates in a

society” is “not a judicial responsibility.” 
Feeney, 442 U.S. at 272
; see also 
Doe, 509 U.S.

at 321 
(“[C]ourts are compelled under rational-basis review to accept a [state’s]

generalizations even when there is an imperfect fit between means and ends.”).

       Ignoring these longstanding legal principles, the majority proposes to replace

government by classification with a class-of-one equal protection regime. See Engquist v.

Or. Dep’t of Agric., 
553 U.S. 591
, 603 (2008). But the Supreme Court has emphasized that

a class-of-one claim under the Equal Protection Clause is not appropriate for challenges to

government policies “which by their nature involve discretionary decisionmaking based on

a vast array of subjective, individualized assessments.”
 Id. The majority’s view, 
followed

to its logical extreme, would destroy the ability of prison officials to group prisoners, even

after individualized evaluations, based on administrative and operational advantages. The

Constitution does not require this.

       Of course, every individual pleading of an imperfect fit under the Equal Protection

Clause will have its sympathetic aspects, and this case is no exception. Taking the facts

pleaded as true, one would naturally respect the plaintiff’s desire to have a job, which might

                                             32
assist others within the institution and further the inmate’s own rehabilitative aspirations.

And if I were free to rule purely on the individual circumstances, and without regard to

broader consequences, I would be drawn to plaintiff’s argument.

       If only it weren’t for that pesky little impediment that goes by the name of law. The

genius of our Constitution is that it assigns different responsibilities to different actors. And

the structure of our founding document has entrusted the administration of state prison

systems to our individual states. Unless the states classify according to an impermissible

characteristic, like race, federal courts must defer to their decisions on how to group their

residents under their laws and policies. Refusing to respect the State’s decision to classify

prisoners according to a doctor’s determination of their medical ability to work undermines

the fundamental legal rule that rational basis review must be deferential. And because the

rational basis test “completely pervades the legal system by virtue of its combination of

substantive review and general applicability,” undermining this rule gives the federal

courts an opportunity to “intrude into virtually any regulatory sphere” within the purview

of state governments. Thomas B. Nachbar, The Rationality of Rational Basis Review, 
102

Va. L
. Rev. 1627, 1629–30 (2016).

       Our hammers drive nails through the remnants of dual sovereignty and I wonder

when, if ever, the resulting din shall cease. More and more, it seems, the states mean less

and less. I respectfully dissent. 2


2
 Because the plaintiff has not pleaded a viable Equal Protection Clause violation, I must
analyze the question of whether the Eleventh Amendment bars the plaintiff’s ADA claims
differently from my colleagues. As the majority recognizes, the Supreme Court has held
(Continued)
                                               33
that “insofar as Title II [of the ADA] creates a private cause of action for damages against
the States for conduct that actually violates the Fourteenth Amendment, Title II validly
abrogates state sovereign immunity.” United States v. Georgia, 
546 U.S. 151
, 159 (2006).
But the Supreme Court did not decide whether Congress has validly abrogated state
sovereign immunity for conduct that violates the ADA in the prison context but not the
Fourteenth Amendment. It did, however, establish a framework for courts to use in this
context. A court must determine, on a “claim-by-claim basis”:

       (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent
       such misconduct also violated the Fourteenth Amendment; and (3) insofar as such
       misconduct violated Title II but did not violate the Fourteenth Amendment, whether
       Congress’s purported abrogation of sovereign immunity as to that class of conduct
       is nevertheless valid.


Id.

       Neither party has 
made arguments under this framework. The Fourth Circuit faced
a similar situation where the parties had failed to brief this issue in Kobe v. Haley, 666 F.
App’x 281, 302 (4th Cir. 2016) (per curiam). There, the court declined to dismiss a claim
on Eleventh Amendment grounds or to rule on the issue in the first instance.
 Id. (holding
that that 
dismissing a claim under Title II of the ADA on Eleventh Amendment grounds
was premature “[p]articularly since [the defendants] have not yet made any argument
regarding how the Georgia framework would apply to the facts before us”). Likewise, I
would remand the plaintiff’s ADA claims against the defendants in their official capacity
to the district court to address in the first instance under the proper framework. As to the
remaining claims, I would affirm the district court.
                                             34