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Roscoe v. Barksdale

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

March 5, 2018

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

          MEMORANDUM OPINION

          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. By memorandum opinion and order entered March 31, 2017, the court granted summary judgment in favor of several defendants.[1] (Dkt. Nos. 53 and 54.) This matter is before the court on the motions for summary judgment of defendants Dr. Moore, Nurse Mullins, B. Taylor, and P. Scarberry. Roscoe has responded to the motions and filed a cross- motion for summary judgment. Having reviewed the record, the court will grant defendants' motions for summary judgment and deny Roscoe's motion.

         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 could not] chew.” On April 9, 2015, an officer gave Roscoe a regular food tray. When Roscoe “repeatedly” told the officer that he was supposed to have a soft food tray, the officer said he would check on it, but he never brought one back. Roscoe alleges that the he also did not receive dinner that day. (Id. ¶ 25 and p. 8.)[2]

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

         Shortly thereafter on the same morning, a unit manager came to Roscoe's pod. When he saw how swollen Roscoe's mouth was, the unit manager 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” the unit manager that he would assess Roscoe and prescribe him a soft diet tray and some additional pain medication. (Id. at 8-9.)

         Later that day, two officers 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 one of the officers that he was on a soft diet, the officer 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 P. Scarberry, the head of food services, told Taylor “and other staff to give Roscoe a vegetarian tray for a soft diet. Roscoe 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 didn't give you your med[ication]s this morning because you said I [have] been shorting your med[ication]s.” Roscoe alleges that he filed three more informal complaints on April 16, 2015.[5] (Id.)

         On May 7, 2015, Dr. Moore responded to one of Roscoe's informal complaints dated April 12, 2015, stating that, despite his complaints about his diet and medications, Roscoe had a prescription for ibuprofen twice a day from the day of the procedure through April 19, 2015; that he had a prescription for Tylenol during that same time; that he had a 10-day prescription for Amoxicillin beginning on the day of the procedure; that he had an eight-day order for Boost drinks beginning the day after the procedure; that he had a seven-day soft-diet order beginning two days after the procedure; and that he had a two-week order for a medicated oral rinse beginning five days after the procedure.

         On May 10, 2015, Roscoe filed a regular grievance, complaining that he had not been prescribed and/or was not receiving pain medication or a soft diet, that the nurse was not properly giving him his medications, and that he had not received the soft diet per Dr. Moore's order.[6] The grievance was rejected at intake on May 12, 2015, because it contained more than one issue, in violation of Virginia Department of Corrections' Operating Procedure (OP) § 866.1, Offender Grievance Procedure. Roscoe was advised that he could resubmit the grievance with only one issue. Roscoe appealed the intake decision, and it was upheld on May 26, 2015.

         While his appeal of the first regular grievance was pending, Roscoe also filed a second regular grievance on May 17, 2015, complaining that following the procedure on April 8, 2015, he had not been prescribed any medication or a soft diet. That grievance was rejected at intake because it was filed outside the filing period set out in OP § 866.1. Roscoe appealed the intake decision, and it was ...


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