United States District Court, W.D. Virginia, Roanoke Division
EMMITT G. ROSCOE, Plaintiff,
JEFFERY KISER, et al., Defendants.
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
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. 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. Having reviewed the record, the court
concludes that the defendants' partial motion to dismiss
must be granted in part and denied in part.
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.)
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.)
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.
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.
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).
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.
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.
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. 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
Standard of Review
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 ...