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Roscoe v. Mullins

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

September 10, 2019

EMMITT G. ROSCOE, Plaintiff,
v.
LARRY MULLINS, Defendant.

          MEMORANDUM OPINION

          PAMELA MEADE SARGENT, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the Defendant's Motion For Summary Judgment, (Docket Item No. 24) (“Motion”), claiming, that summary judgment should be entered in his favor on the plaintiff's 42 U.S.C. § 1983 claim. A hearing was held on the Motion on March 5, 2019. Based on the evidence before the court, I will grant the Motion and enter summary judgment in the defendant's favor.

         I. Facts

         In his sworn Complaint, (Docket Item No. 1), Emmitt G. Roscoe, who is incarcerated in the Virginia Department of Corrections, (“VDOC”), in Red Onion State Prison, (“Red Onion”), claims that Larry Mullins, a Disciplinary Hearing officer at Red Onion, violated his due process rights under the Fourteenth Amendment to the United States Constitution in disciplinary hearings held June 13, 2017. In particular, Roscoe claims his rights were violated because he was denied an advisor and documentary evidence and witnesses, the disciplinary hearing was “biased, ” and he was convicted of “fabricated charges.”

         In his Complaint, Roscoe stated that he was placed in segregation housing and charged with two disciplinary offense charges on May 26, 2017. The two charges were Offense Code 129 for approaching a person in a threatening manner, and 103/198B for attempting to commit/incite a riot. Roscoe said that, when these charges were served upon him, he requested an advisor, witnesses and documentary evidence. Roscoe said that the charges were heard by Mullins on June 13, 2017. According to Roscoe, he was not provided with an advisor, and his requests for documentary evidence and witnesses were denied by Mullins. He said that Mullins found him guilty of the two disciplinary charges and sentenced him to disciplinary segregation from May 26 to August 2, 2017.

         Roscoe attached the two Disciplinary Offense Reports for the charges to his Complaint, (Docket Item No. 1-1). One Disciplinary Offense Report shows that Roscoe was charged with an Offense Code 129 violation for gathering around or approaching any person in a threatening manner on May 26, 2017, No. ROSP-2017-0662. (Docket Item No. 1-1 at 1.) On this form, the Reporting Officer, D. G. Gardner, stated:

On the above date and approximate time I C/O Gardner was standing outside of the A&B chow hall as the NOI [Nation of Islam] services were exiting. I instructed offender Murray to step out of line so myself and officer Sexton could talk to him. At that point Offender E. Roscoe … stepped out of line and approached me in what I perceived as an aggressive manner. I then instructed him to get back in line. He ignored my orders and only got back in line after canine officer approached him and ordered him back in line.

(Docket Item No. 1-1 at 1.) This form shows that it was served on Roscoe on May 26, 2017, at which time Roscoe requested an advisor, witnesses and documentary evidence. (Docket Item No. 1-1 at 1.)

         The other Disciplinary Report shows that Roscoe was charged with an Offense Code 103/198B for attempting to commit/incite a riot, rioting on May 26, 2017, No. ROSP-2017-0664. (Docket Item No. 1-1 at 3.) On this form, the Reporting Officer, Gardner, stated:

On the above date and approximate time I c/o Gardner observed offender E. Roscoe … talking in an aggressive manner to the other offenders in the NOI religious service about how and I quote “caucasian America is trying to hold the black man down and we have to stand together and quit fighting amongst ourselves.” Afterwards, several of the offenders ignored several orders to line up. I then observed offender E. Roscoe walk up and down the line talking with the other offenders in an aggressive manner. As he finished talking [he] would turn around and stare at c/o Childress and myself in what appeared to be an angry state.

(Docket Item No. 1-1 at 3.) This form shows that it was served on Roscoe on May 26, 2017, at which time Roscoe requested an advisor, witnesses and documentary evidence. (Docket Item No. 1-1 at 3.)

         Another page of this Disciplinary Offense Report shows that Roscoe was found guilty of the 103/198B attempting to commit/inciting a riot/rioting charge by Mullins after a disciplinary hearing was held on June 13, 2017. Under the “Reason for Decision” section, Mullins wrote:

C/O Gardner testified that after the NOI services where E. Roscoe … had made statements which suggested that blacks should “band together” against whites and they should stay together to defeat whites the offenders got agitated. The NOI attendees refused three orders to line up to exit the chow hall and did not do so until the gun post put the gun out the window. Further E. Roscoe was making comments to offenders in the line which caused them to turn toward the staff members present and give them aggressive looks. E. Roscoe testified that he did not tell anyone to do anything or to incite a riot and that he could not make someone do anything. C/O Payne as witness confirmed the testimony of C/O Gard[]ner in describing the behavior/actions exhibited by the NOI participants. I determined that the behavior of and statement by E. Roscoe did inflame the group of offenders and I find that his actions do meet the definition of attempting to incite to riot/acting in a manner that disrupts the orderly operation of the institution.

(Docket Item No. 1-1 at 4.) The Report shows that Mullins imposed a loss of Roscoe's accumulated good time credit and 30 days in disciplinary segregation. Unit Manager Larry Collins approved ...


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