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Roscoe v. Collins

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

April 20, 2018

L. COLLINS, et al., Defendants.



         The pro se plaintiff, Emmitt Roscoe, Jr., is a Virginia Department of Corrections, (“VDOC”), inmate currently housed at Red Onion State Prison, (“Red Onion”). This matter is before the undersigned on the plaintiff's motion for entry of preliminary injunctive relief seeking medical/dental treatment and a soft diet, preventing the defendants from taking any retaliatory action against him for filing this lawsuit and seeking a transfer to another VDOC prison. (Docket Item No. 26) (“Motion”). The Motion is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). An evidentiary hearing was held before the undersigned on March 1, 2018. The undersigned now submits the following report and recommended disposition.

         I. Facts

         By Complaint filed October 27, 2017, Roscoe brought this § 1983 action against numerous VDOC correctional officers and food service, medical and dental workers at Red Onion. (Docket Item No. 1). In his Complaint, Roscoe alleged that he was attacked by another inmate on February 3, 2017, while attending a Nation of Islam religious service. Roscoe alleged that his jaw was broken in the attack and that he was knocked out. He claimed that, after the attack, he was taken to his cell and denied medical treatment until he was later discovered unconscious lying on his cell floor. Roscoe alleged that he was taken to the Medical Department and then transported to a local hospital. He stated that, at the local hospital, a CT scan confirmed that his jaw was broken, but the hospital offered him no treatment. Roscoe stated that he was transported back to Red Onion, where he was held without medical treatment until February 6, 2017, when he was taken to see an oral surgeon, Dr. Hollifield. Dr. Hollifield performed surgery and wired his jaw shut to facilitate healing. Roscoe alleged that he was transported back to Red Onion after surgery and was supposed to be provided a liquid diet that he could drink through a straw. Instead, Roscoe stated that he was often served pureed food that he could not eat with his jaw wired shut.

         Roscoe's Complaint seeks damages and injunctive relief claiming that certain correctional officers initially denied him medical treatment by returning him to his cell after the attack, that medical and dental workers were deliberately indifferent to his need for treatment after the attack and continuing, that food service workers served and continue to serve him food he cannot eat due to his injury and that certain defendants have retaliated and continue to retaliate against him for filing this lawsuit.[1] At the March 1 hearing, Roscoe stated that he was seeking preliminary injunctive relief ordering the defendants to provide him with needed medical/dental treatment, to provide him with a soft diet, to stop retaliating against him and to transfer him to another VDOC prison.

         At the March hearing, Roscoe testified that his jaw bone was broken, his teeth damaged, and a nerve in his jaw was damaged in the February 3, 2017, attack. As a result, he said that his top and bottom teeth do not align properly causing him continuing pain and difficulty eating. Roscoe testified that he had filed a number of requests recently seeking dental treatment for his continuing complaints. Roscoe said these requests included Offender Request forms sent by him to Red Onion's Dental Department on January 8 and 23, 2018, and February 11 and 20, 2018, to which no one had responded. (Plaintiff's Exhibit No. 7; Docket Item No. 49-7.)

         On January 8, 2018, Roscoe sent an Offender Request form to Dental seeking an appointment. He wrote on the form:

I saw you last week[.] I gave my mouth some time[.] I'm still [experiencing] a great deal of pain when I attempt to chew things of thick consistency[.] My teeth are not connecting on one side again[.] I [am] suffering in pain and I'm not eating properly. Please see me soon to attempt to address this issue for the 3rd time now.

(Docket Item No. 49-7 at 1.)

         Roscoe sent another Offender Request form to Red Onion's Medical Department on January 23, 2018. On this Request form, Roscoe wrote, in part:

… I [recently] received your response that I am scheduled to be seen this response is dated 1-16-18 that I will be seen by dental[.] I am suffering in pain[.] I am not able to properly eat my food due to the pain in my jaw[.] What is the hold up with my medical visit to dental[?] I'm being forced to suffer in pain[.] Your response was I was scheduled for dental so when will I be seen.

(Docket Item No. 49-7 at 2.)

         Roscoe sent another Offender Request form to Dental on February 11, 2018. On this form, Roscoe wrote:

On 1-16-18 I received a response from dental assistant R. Hubbard that I was scheduled for … dental appointment[.] I [am] suffering from extreme pain and I'm losing weight cause I can't eat most of the food I [receive] … before the trays are collect[ed.] It's unclear to me why you are refusing to see me[.] I am suffering and that clearly seem[s] to be of no concern to … you but where my health is concern[ed] it[] should be a #1 priority[.] I'm [suffering] in pain and it's starting to do something to my mental [health.] I ask you to please see me for my constant pain. I'm begging you this pain is unbearable[.] I can't sleep and it's running me so crazy. Please help.

(Docket Item No. 49-7 at 3.)

         Roscoe sent another Offender Request form to Dental on February 20, 2018, on which he wrote:

This [is] my 3rd attempt to be seen by your medical department for my injury since 1/16/18 when I received a response that I was scheduled for … dental appointment but to no avail[.] It's odd to me that you are refusing me treatment after you are aware that I current[ly] suffer some complication[.] But before I kill my self from the mental breakdown … from being forced to suffer in pain so long I will make sure my people know the cause behind my early demise. Please see me.

(Docket Item No. 49-7 at 4.)

         Roscoe testified that, at the time of the injury to his jaw, he weighed 142 pounds; he said that he then currently weighed 123 pounds. He said that he had lost almost 20 pounds because he was fed the wrong food and that he could not eat properly. Roscoe testified that his soft diet order ended on March 14, 2017. Nonetheless, Roscoe introduced an Offender Diet Order form dated September 27, 2017, which stated that he should receive a mechanical soft diet through November 1, 2017. (Plaintiff's Exhibit No. 8; Docket Item No. 49-8.) At another point in his testimony, Roscoe said that he was last provided a soft diet through November 1, 2017. Roscoe testified that he was no longer receiving a mechanical soft diet.

         Roscoe testified that, on the day of the attack, he was taken from Red Onion to a local hospital. He said that the doctor who examined him at this hospital said that he could not treat Roscoe's injury. He said that the doctor advised that Roscoe see an oral surgeon as soon as possible. Roscoe said he was returned to the prison and waited three days with his injury before being seen and treated by Dr. Hollifield.

         Roscoe said that he also had been seen by a specialist at the Medical College of Virginia, (“MCV”), who had stated that he might need to have his jaw rebroken to treat his condition. This specialist had recommended that the prison dentist attempt to fix Roscoe's problem, but Roscoe stated that the prison dentist simply grinds down his teeth. This, he said, had not helped his problem. He said the prison dental staff was refusing to send him back to MCV for further consultation with the specialist there.

         Roscoe stated that, in retaliation for complaining about his lack of treatment in a grievance, a false charge for kicking his door was written against him on January 7, 2018. He said this disciplinary charge was later dismissed because the charging officer admitted that he could not identify who had kicked the cell door.

         Roscoe also testified that Sergeant Hall planted a knife in his cell on January 23, 2018, in retaliation for his refusing to end a hunger strike. Roscoe testified that, when he requested an informal complaint form from Hall, Hall told him, “We are sick of you filing informal complaints.” Roscoe also testified that Hall told him, “I'm going to lock you up.” Roscoe said that Hall thought that Roscoe was the leader of an inmate hunger strike. He said that Hall told him that, if he did not tell the other inmates to end the hunger strike, Hall would plant a knife on Roscoe.

         Roscoe stated that, when he was ordered to submit to restraints to be removed from his cell on January 23, he refused until Lieutenant Adams arrived at his cell door. He said that he told Adams that Hall had threatened to plant a knife on him. Roscoe said that he then submitted to be restrained. When he exited his cell, Adams was no longer present. Roscoe testified that officers then planted a knife on him and transferred him to segregation. He said that he was later released from segregation without any type of hearing.

         Specifically, Roscoe testified that he saw Hall pull some toilet paper out of his pocket. Roscoe said that the toilet paper was wrapped around a knife. He said that he asked Hall what he was doing and told him that he saw him take the knife out of his pocket. Roscoe testified that he did not have a knife in his cell before Hall planted the knife. He also said that Hall never showed him any weapon that Hall claims to have found in his cell.

         Roscoe conceded that he had no evidence that the knife was planted in his cell because of his lawsuit, but he said that he never received any charges for possessing weapons until he was transferred to Red Onion.

         Roscoe admitted on cross-examination that he was found guilty of possessing a weapon on January 23, 2018. Roscoe also admitted that he was charged with and found guilty of flooding his cell and threatening an officer on January 10, 2018. Roscoe admitted that he did flood his cell, but he denied threatening any officer on this date.

         Roscoe also testified that officers refused to transport him to a follow-up visit with Dr. Hollifield on June 21, 2017, because Correctional Officer Meade falsely claimed that Roscoe had threatened him. He said he was charged with a threatening bodily harm disciplinary infraction. Roscoe testified that, as he was being searched to leave his cell on this day, he followed the officer's instruction to open his mouth, and he opened his mouth as far as he could. Roscoe said that the officer told him that he did not open his mouth wide enough. He said the officer got mad and slammed his tray slot shut. Roscoe testified that he was not transported to see Dr. Hollifield until September 19, 2017. On this occasion, Dr. Hollifield recommended that Roscoe return to the specialist at MCV to be examined.

         Roscoe said that he has not been returned for any follow-up examination at MCV. Roscoe said that he did not want to have his jaw broken again, but, if that was what was necessary to cure his pain, he wanted treatment. Roscoe said that he did not know what treatment was needed. “All I know is that I am suffering in pain.” Roscoe described his pain level as a 7 on a 10-point scale. Roscoe said that he had repeatedly sought treatment from nurses at Red Onion for his jaw pain, but that the nurses had told him that it was a dental problem. Roscoe said the nurses told him ...

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