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Roscoe v. Barksdale

United States District Court, W.D. Virginia, Roanoke Division

March 31, 2017

EMMITT G. ROSCOE, Plaintiff,
EARL R. BARKSDALE, et al., Defendants.


          Elizabeth K. Dillon United States District Judge

         Emmitt G. Roscoe, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 concerning his care following the removal of his wisdom teeth. Defendants Dr. Moore and Nurse Mullins filed a motion to dismiss and the remaining defendants filed a motion for summary judgment. Roscoe has responded to both motions, and this matter is ripe for disposition.[1] Having reviewed the record, the court will grant in part and deny in part defendants Dr. Moore and Nurse Mullins's motion to dismiss, and grant defendants Barksdale, Messer, Brock, Gibson, Lawson, Addington, and Smith's motion for summary judgment.

         Before turning to the defendants' motions, the court addresses a number of other motions that Roscoe has filed. First, Roscoe has filed a motion seeking preliminary injunctive relief, alleging that officers have threatened him, planted a weapon in his cell for which he received a disciplinary conviction, and placed him in administrative segregation. Roscoe asks the court to enjoin the defendants from engaging in any retaliatory acts. (Dkt. No. 37.)

         Preliminary injunctive relief is an extraordinary remedy that courts should apply sparingly. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991). As a preliminary injunction temporarily affords an extraordinary remedy prior to trial that can be granted permanently after trial, the party seeking the preliminary injunction must demonstrate by a “clear showing” that: (1) he is likely to succeed on the merits at trial; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 22 (2008). The party seeking relief must show that the irreparable harm he faces in the absence of relief is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd., 952 F.2d at 812. Without a showing that the plaintiff will suffer imminent, irreparable harm, the court cannot grant preliminary injunctive relief. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991). “The possibility that adequate compensatory or other corrective relief will be available at a later date . . . weighs heavily against a claim of irreparable harm.” Va. Chapter, Associated Gen. Contractors, Inc. v. Kreps, 444 F.Supp. 1167, 1182 (W.D. Va. 1978) (quoting Va. Petroleum Jobbers Ass'n. v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958)).

         Having reviewed Roscoe's motion, the court concludes that he has not made a “clear showing” that he is likely to suffer “actual and imminent” irreparable harm in the absence of preliminary injunctive relief. Verbal threats or harassment by prison officials, even to the extent they cause an inmate fear or emotional anxiety, do not amount to a constitutional violation. See, e.g., Morrison v. Martin, 755 F.Supp. 683, 687 (E.D. N.C. 1990). Roscoe does not allege that he was denied a hearing or due process concerning the “planted” weapon which he was charged with possessing. And changes “in a prisoner['s] location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and which] are contemplated by his original sentence to prison.” Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991). Roscoe has failed to demonstrate that any alleged violation of his rights cannot be adequately addressed at a trial on their merits. Accordingly, the court will deny Roscoe's motion seeking preliminary injunctive relief.

         Roscoe also has filed three motions to amend. Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend shall be freely given when justice so requires. Fed.R.Civ.P. 15(a). However, leave to amend a pleading should be denied “when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). An amendment is considered futile if the amended complaint could not survive a motion to dismiss under Rule 12(b)(6). United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008).

         In the first motion (Dkt. No. 45), Roscoe seeks to add P. Scarberry, the head of food services, and B. Taylor, a food services employee, as defendants to this action. As Roscoe alleged facts against these individuals in his original complaint and referred to them as defendants in that pleading, it appears that he mistakenly omitted their names in his initial list of defendants. Accordingly, the court will grant Roscoe's motion to amend to add these defendants and direct the clerk to notify them of the action.

         In the second motion (Dkt. No. 49), Roscoe states that he wants to “fix” his complaint and add claims. In support of his motion, Roscoe alleges that, as “retaliation and harassment, ” he is “continuously being charged with bogus institutional infractions” since he filed this case and that two of the three charges against him have been dismissed. He also states that he wants to “bring [a] claim about [his] religious rights being violated during Ramadan.”

         To state a claim for relief under § 1983, a plaintiff must allege facts indicating that plaintiff has been deprived of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42 (1988). Roscoe's allegations are far too vague and conclusory to state a cognizable constitutional claim. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (noting that bare assertions of retaliation do not establish a claim of constitutional dimension). Further, Roscoe does not allege any facts against any of the defendants, or even against any person. Still further, even if the proposed amendments were not futile, it appears that the allegations may arise out of an occurrence or series of occurrences separate from the allegations in this case and would be more appropriately made, if properly alleged, in a separate case. See Fed. R. Civ. P. 18 and 20. Based on the foregoing, the court finds that Roscoe's amendments would be futile; thus, the court will deny his second motion to amend. The court notes that denial of Roscoe's motion to amend does not preclude him from raising these claims in greater detail in a separate civil action after he has exhausted available administrative remedies.

         Roscoe's third motion to amend (Dkt. No. 50) is contained within the same document as his second motion to amend (Dkt. No. 49), but has been docketed separately. In it, Roscoe indicates that he wishes to amend his responses in opposition to defendants' motions to dismiss and for summary judgment; however, he provides no information on how he would like to amend those responses. Accordingly, the court denies Roscoe's third motion to amend.

         I. BACKGROUND

         On April 8, 2015, Roscoe was taken from Red Onion State Prison (Red Onion) to a private dentist's office to have his wisdom teeth removed. Roscoe alleges that, when he arrived back at Red Onion after the procedure, defendant Dr. Moore, a dentist at Red Onion, did not evaluate him and did not prescribe any pain medication or a soft diet. Roscoe contends that he “was unable to eat anything” and “endure[d] pain for a month [or] more.” (Compl. ¶ 24, Dkt. No. 1.)

         Despite not having an order for a soft diet, at dinner time on April 8, 2015, Roscoe was given a soft diet tray because a food service worker thought he “look[ed] like [he couldn't] chew.” On April 9, 2015, defendant Officer Smith gave Roscoe a regular food tray. When Roscoe “repeatedly” told Smith that he was supposed to have a soft food tray, Smith said he would check on it, but he never brought one back. Roscoe alleges that Smith also did not feed him dinner that day. (Id. ¶ 25 and p. 8.)[2]

         On April 10, 2015, defendant Officer Gibson brought Roscoe a Common Fare food tray. When Roscoe complained that he should have a soft diet tray, Gibson took the tray back to the kitchen and was told by defendant Taylor, a food services worker, that Roscoe “was not down for a soft diet tray” and that Gibson should take Roscoe a regular tray which had fried potato pancakes and “turkey ham.” Roscoe asked Gibson for an emergency grievance form, and Gibson gave it to him. Roscoe completed the emergency grievance and tried to give it to defendant Officer Brock, who told Roscoe, “Fuck you and that emergency grievance. I don't sign them shits for people who are snitching.” Roscoe then tried to give the emergency grievance to defendant Officer Lawson, who said, “You know what paperwork can do for you.” Roscoe responded that he hoped it would get him medical attention, and Lawson states “Yeah, not the kind you [are] seeking. I'm not signing it.” (Id. at 8.)

         Shortly thereafter on the same morning, Unit Manager (UM) Swiney came to Roscoe's pod. When he saw how swollen Roscoe's mouth was, UM Swiney called Dr. Moore and asked him to assess Roscoe and to “prescribe him proper care to aid his healing.” Roscoe alleges that Dr. Moore “assured” UM Swiney that he would assess Roscoe and prescribe him a soft diet tray and some additional pain medication. (Id. at 8-9)

         Later that day, Gibson and defendant Officer Addington gave Roscoe a regular lunch tray that had a tag on in indicating that it was for Roscoe and that it was a soft diet tray. Roscoe complains, however, that “everything that on the tray was not soft enough to where [he] could eat it without chewing.”[3] When Roscoe told Addington that he was on a soft diet, Addington told him that he was “not going back to the kitchen [and Roscoe should just] smush it with [his] spoon.” For dinner that night, Roscoe went to the “chow hall” to eat and was given a regular tray. (Id. at 9.)

         On April 11, 2015, Roscoe was given a vegetarian food tray at lunch time and was told that, “beans, rice, and cabbage [do] not have to be chewed.” Roscoe spoke with food services worker Taylor about the tray, and Taylor told Roscoe that defendant Scarberry, the head of food services, told Taylor “and other staff” to give Roscoe a vegetarian tray for a soft diet. He alleges that he filed three informal complaints on April 12, 2015, concerning his diet and failure to receive medication.[4] (Id.)

         On April 13, 2015, during morning pill pass, defendant Nurse Mullins gave Roscoe improper “dosages” of his “prescribed medication, ” which included Boost drinks and medicated mouthwash. During afternoon pill pass the same day, Nurse Mullins “shorted” Roscoe on his “med[ication]s” again and told him, “I ...

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