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Roscoe v. Collins

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

June 26, 2018

EMMITT ROSCOE, JR., Plaintiff,
v.
L. COLLINS, et al., Defendants.

          MEMORANDUM OPINION

          HON. JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE

         Emmitt Roscoe, Jr., a Virginia prisoner proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 about correctional and medical staffs' alleged deliberate indifference to his physical pain and wasting. This matter is before me on the magistrate judge's report and recommendation, to which the parties have objected. See 28 U.S.C. § 636(b)(1)(B). For the following reasons, I adopt the report and recommendation and grant the motion for a preliminary injunction (the "Motion").[1]

         I.

         A.

         A fellow inmate broke Plaintiffs jaw and damaged a nerve on February 3, 2017, and an oral surgeon wired his jaw shut several days later. Consequently, Plaintiff needed a liquid diet but had often been served pureed foods that he could not eat. The alleged continued jaw pain caused him to not want to eat, and he allegedly lost twenty pounds during eleven months. He complains that the pain has remained untreated although the jaw is no longer wired shut and is deemed healed.

         Several months after commencing the action in 2018, Plaintiff filed a motion for a preliminary injunction. The injunctive relief was sought against defendants dentist Dr. Moore, Nurse Bledsoe, Unit Manager L. Collins, Food Service Director P. Scarberry, Food Service Manager Brock, and "all remaining defendants."[2] The "remaining defendants" named in the original complaint but not specifically named in the Motion were Officer Sellers, Officer Bentley, Jane Doe #1 (Off-site Scheduler), Jane Doe #2 (Medication Staffer), John Doe #1 (Off-site Scheduler), John Doe #2 (Correctional Officer), and John Doe #3 (Correctional Officer). The motion was served on defendants Dr. Moore, Nurse Bledsoe, Unit Manager Collins, Food Service Director Scarberry, Food Service Manager Brock, and Officer Sellers only. Relief was also requested against non-defendant correctional officers Lt. Sykes, Sgt. Large, Sgt. Farmer, Bray, Meade[3], and "A. Pain."[4]

         The motion and accompanying memorandum sought preliminary relief about two aspects of his conditions of confinement: retaliation and dental treatment. For the alleged retaliation, Plaintiff requests an order disallowing defendants and their "associates" from "assaulting, h[i]ndering, any unlawful tampering with outgoing mail and incoming mail[, ] planting weapons or other contraband[, ] giving bogus charges [, ] threats, intimidation, harassment[, ] and denying complaint forms[, ] e[tc]." For the allegedly deficient dental treatment, Plaintiff requests an order that "[Dr.] Moore shall arrange for Plaintiff... to be order[ed] the post surgery that can repair Plaintiff['s]... remaining injuries. This should be a[n] order to a more qualified dentist, or oral specialist. And to obtain from that specialist a full evaluation of [Plaintiffs] ... remaining injuries before surgery is p[er]formed...." Plaintiff also requested a transfer to a Sussex I State Prison where Dr. Moore does not provide dental services to inmates.

         Plaintiff alleges several examples of retaliation. Plaintiff did not like the way defendant Officer Meade spoke to him in front of defendants Sgt. Large, Sgt. Farmer, and Officer Bray on June 21, 2017. When Plaintiff challenged the appropriateness of Meade's statements, Meade disallowed Plaintiff to be transported to a dental appointment outside the prison and falsely charged Plaintiff with a disciplinary infraction. On January 10, 2018, Plaintiff flooded his cell after an officer spoke rudely to him, and Plaintiff was then falsely charged with threatening bodily harm. Also, Plaintiff asserts that he is "consistently being placed in segregation for my complaining an[d] falsely charged" without a classification hearing is not allowed to leave his segregation cell for showers or outside recreation. Plaintiff also complains that some of his personal property was missing after returning from segregation and that staff does not give him informal complaint forms.

         Plaintiff describes his dissatisfaction with Dr. Moore's treatment. After Meade cancelled the transport in June 2017, Plaintiff saw a dental provider in September 2017 per Dr. Moore's consultation request. The provider recommended Plaintiff be seen by staff at a hospital ("MCV"). An oral surgeon at MCV saw Plaintiff in November 2017 and noted there were two ways to "fix" Plaintiff s jaw. The first way was by re-breaking the jaw and implanting metal plates, and the second way was by sanding teeth down. The oral surgeon recommended the less drastic option - sanding the teeth - but said that it ultimately may not "fix" the jaw. By the time, of the Motion, Dr. Moore had sanded Plaintiffs teeth during two separate visits. Plaintiff asserts that the sanding has caused pain and has not "fixed" the jaw. Plaintiff further complains that Dr. Moore remains his dentist despite suing him twice and that "[Dr. Moore] is hurting more [sic] every[]time."

         B.

         The magistrate judge conducted an evidentiary hearing on March 1, 2018. Plaintiff, several prisoners, and defendants Unit Manager Collins and Nurse Bledsoe testified. Non-defendants Unit Manager Duncan, Qualified Mental Health Practitioner ("QMHP") Brookshire, Officer B. Mullins, Sgt. Hall, and Dental Assistant Hubbard also testified.[5]

         Plaintiff filed a motion to amend at the conclusion of the hearing and a second motion to amend more than two weeks after the hearing. On March 21, 2018, the magistrate judge, inter alia, granted the second motion to amend and acknowledged the first amended complaint.[6]

         On April 17, 2018, the magistrate judge allowed Plaintiff the opportunity to amend the complaint again. The order noted Plaintiff "may file an Amended Complaint adding Adam Wyatt as a party defendant and alleging an additional claim of retaliation against the defendants for withholding access to the Virginia Department of Corrections Grievance Procedure...." Three days later on April 20, 2018, the magistrate judge issued the report and recommendation for the Motion, and multiple parties objected within the fourteen day period.[7]

         C.

         The magistrate judge recommends that I grant the Motion in part. Specifically, the magistrate judge recommends granting the Motion only "insofar as it requests the court to enter preliminary injunctive relief to prevent the defendants Dr. Moore and Hubbard8 from refusing to provide ongoing dental treatment to ...


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