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Roscoe v. Kiser

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

August 12, 2019

EMMITT G. ROSCOE, Plaintiff,
v.
JEFFERY KISER, et al., Defendants.

          MEMORANDUM OPINION

          ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE

         Emmitt G. Roscoe, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants retaliated against him and denied him due process.[1] This matter is before the court on a partial motion to dismiss filed by defendants Warden Jeffery Kiser, Assistant Warden J. Artrip, Regional Administrator M. Elam, and Regional Operations Chief H.J. Ponton.[2] Having reviewed the record, the court concludes that the defendants' partial motion to dismiss must be granted in part and denied in part.

         I. BACKGROUND

         In Roscoe's second amended complaint, he asserts that the defendants violated his constitutional rights by retaliating against him for filing complaints and grievances and by depriving him of his right to due process during a disciplinary proceeding. Roscoe, who at all times relevant was held at Red Onion State Prison, requested an informal complaint form from Sgt. Hall because he and other inmates were not receiving showers or recreation time. On January 22, 2018, Roscoe initiated a hunger strike in protest of not being given an informal complaint form and told Sgt. Hall that he would eat once he received an informal complaint form. (2d Am. Compl. ¶¶ 17-20, Dkt. No. 35.)

         Sgt. Hall told Roscoe to “call off the strike . . . or [he will] plant a knife in [Roscoe's] cell.” Roscoe asserts that two other inmates heard Sgt. Hall. On January 23, 2018, Sgt. Hall told Roscoe that if he did not eat, “he would not be released from segregation and that a false 120b (tampering with security device) [disciplinary charge] . . . wouldn't be all [Roscoe] had to worry about.” (Id. ¶¶ 20-22.)

         Later that day, Sgt. Hall started to conduct a strip search of Roscoe and Roscoe asked to speak with the Building Lieutenant. Roscoe told the Lieutenant about the threats, and the Lieutenant assured Roscoe that he would be present during the search; however, Roscoe did not see the Lieutenant during the strip search. No. cell search was conducted, yet Sgt. Hall and a correctional officer packed Roscoe's items. Roscoe alleges that he saw Sgt. Hall “remove a white rag of some sort which contained something else . . . from [Sgt.] Hall's pocket.” Roscoe was then moved to a new cell. The new cell did not have a flushing valve on the toilet or electrical outlet, and the window had a black flap which limited his ability to see outside. Subsequently, Roscoe was charged with possessing a weapon. (Id. ¶¶ 23-25.)

         On January 24, 2018, Roscoe had a disciplinary hearing on the “120b (tampering with security device)” disciplinary charge, which was the reason he was in segregation. The hearing officer determined that Roscoe was innocent of the charge, yet Roscoe continued to be held in segregation pending the weapon possession charge. (Id. ¶26.)

         On January 31, 2018, Roscoe had a disciplinary hearing on the weapon possession charge before Hearing Officer Counts. At the hearing, Off. Counts denied Roscoe's request to present witnesses or documentary evidence because Off. Counts determined that all of the proposed witness testimony was not relevant. Off. Counts found Roscoe guilty of the weapon possession charge and fined him $15 and assigned him to long-term segregation. (Id. ¶ 27-29).

         On February 2, 2018, Roscoe “[w]as officially ICA'd” and he was placed in level “S” segregation. Roscoe appealed his Institutional Classification Authority (ICA) determination to Regional Operations Chief Ponton and Regional Administrator Elam. Roscoe argued in his appeal that his security level was being increased only because of the “false” weapon conviction based on the “illegal” disciplinary hearing. (Id. ¶ 29.)

         On February 12, 2018, Roscoe filed a level one appeal of the disciplinary decision. Roscoe asserted that the weapon possession charge was fabricated and that he was deprived due process because he could not call witnesses or present documentary evidence during his hearing. Upon review, Warden Kiser upheld the disciplinary conviction. On March 19, 2018, Roscoe filed a level two appeal to Regional Administrator Elam, who upheld the level one decision. (Id. ¶¶ 30-31.)

         Liberally construed, Roscoe's claims are that: (1) Warden Kiser, Asst. Warden Artrip, Regional Administrator Elam, Regional Operations Chief Ponton, and Officer Counts violated his Fourteenth Amendment rights to due process related to a disciplinary hearing; and (2) Warden Kiser, Asst. Warden Artrip, Regional Administrator Elam, and Sgt. Hall retaliated against him in violation of the First Amendment. This matter is before the court on all defendants' partial motion to dismiss. All defendants seek dismissal of any monetary damage claims to the extent they are sued in their official capacities.[3] Defendants Warden Kiser, Asst. Warden Artrip, Regional Administrator Elam, and Regional Operations Chief Ponton (but not Officer Counts) seek dismissal of the Fourteenth Amendment due process claim. Defendants Warden Kiser, Asst. Warden Artrip, and Regional Administrator Elam (but not Sgt. Hall) seek dismissal of the First Amendment retaliation claim.

         II. DISCUSSION

         A. Standard of Review

          A complaint need only contain “a short, plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). When evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must accept as true all well-pleaded allegations. See Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Stated differently, to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 ...


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