United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
MEADE SARGENT, UNITED STATES MAGISTRATE JUDGE.
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
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.
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. 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
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.)
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.)
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.)
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.)
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.)
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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 ...