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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 ORDER

          PAMELA MEADE SARGENT, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the plaintiff's Motion For Sanctions, (Docket Item No. 41) (“Motion”). An evidentiary hearing was held on the Motion on March 5, 2019. Based on the evidence and arguments presented by the parties, the Motion is DENIED for the reasons set out below.

         I. Facts

         In this 42 U.S.C. § 1983 action, the plaintiff, Emmitt G. Roscoe, a Virginia Department of Corrections, (“VDOC”), inmate incarcerated in Red Onion State Prison, (“Red Onion”), claims that Larry Mullins, a disciplinary hearings 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. The Motion seeks the imposition of sanctions against Mullins for failing to preserve a surveillance video recording taken outside of the A & B Dining Hall on May 26, 2017, the date on which Roscoe was charged with violating Disciplinary Offense Code 129 for approaching a person in a threatening manner. Roscoe also was charged with attempting to incite a riot on May 26, 2017.

         Roscoe testified at the March 5 hearing that he was charged with two disciplinary offenses at Red Onion on May 26, 2017. Roscoe conceded that, prior to his disciplinary hearings, he never filed any written request asking that the surveillance video recordings of the outside of the A & B Dining Hall on the date and time of his charges be preserved. Instead, he testified that VDOC policy required that he verbally request the hearings officer to review the video evidence. In fact, Roscoe said the form used to request documentary evidence for a disciplinary offense hearing specifically states that it is not to be used to request video recordings. Roscoe testified that, at his June 13, 2017, disciplinary hearings, he requested that Hearings Officer Mullins review the video recording of the outside of the A & B Dining Hall for the date and time of his alleged violation of Offense Code 129.

         After his disciplinary hearings on June 13, 2017, Roscoe said, he became worried about the surveillance video being preserved, so he filed a request that it be preserved by placing the request form in his cell door so the night shift correctional officers could collect it. When he did not receive a response to this request, Roscoe said, he filed another request to preserve the video recording with J. Fannin, the Institutional Investigator, on June 18, 2017. When Fannin did not respond to this request, he said, he sent a request form to the Warden on June 28, 2017, asking that the video recording be preserved. Roscoe said that the Warden never responded to this request. Roscoe also stated, on his appeal of his disciplinary offense conviction, he asked the Warden to review the video evidence.

         Roscoe admitted VDOC Operating Procedure, (“OP”), 030.1 Evidence Collection And Preservation, into evidence as Plaintiff's Exhibit No. 1. The Exhibit was admitted into evidence under seal because it deals with security operations at VDOC facilities and is not available for inmate review. OP 030.1 states that it “provides guidance for the proper collection, documentation, control, preservation, and disposal of all types of evidence” within the VDOC. (Docket Item No. 58 at 1.) According to OP 030.1, institutional investigators and intelligence officers can copy and download digitally stored evidence, which would include video recordings. (Docket Item No. 58 at 4.) OP 030.1 also states that, if a grievance is received that references a specific video recording, a copy of the recording “shall be saved.” (Docket Item No. 58 at 4.) It further states that any digital evidence shall be retained for at least five years after the date of the incident. (Docket Item No. 58 at 4.) It also states that, if a lawsuit is filed or an investigation is in progress, digital evidence “shall be retained until the investigation or lawsuit is completed.” (Docket Item No. 58 at 4.)

         Roscoe further testified that VDOC OP 861.1 Offender Discipline, which was submitted as an exhibit to Mullins's Affidavit in support of his motion for summary judgment, refers to how an inmate can request video camera footage as evidence. A review of OP 861.1, shows that it states “[i]f the offender requests the review of video/audio recording …, the need to review such recordings … is determined by the Hearings Officer.” (Docket Item No. 25-1 at 84.)

         Red Onion Warden, Jeff Kiser, also testified at the evidentiary hearing. Kiser said that he was aware of the disciplinary charges against Roscoe, and he considered Roscoe's appeal of his convictions. Kiser stating that inciting a riot in prison was very serious, and, if an offender did incite a riot, he should be placed in restrictive housing. Kiser said that, while he upheld Roscoe's convictions and penalties, he did not uphold a recommendation that he be designated to segregation housing on a long-term basis because he wanted to encourage Roscoe to change his behavior.

         Kiser said that he did not recall ever telling Roscoe that the disciplinary charges against him were “bogus.” He said that he did review the video recording taken by the surveillance cameras located inside the Dining Hall on May 26, 2017, but did not review any video recording taken by cameras located outside of the Dining Hall. Kiser said, that, based on his knowledge, Roscoe did not request that the video recording from outside of the Dining Hall be preserved. Kiser said he did not recall that he ever received any request form requesting the video recording from outside of the Dining Hall be preserved. He testified that he did not instruct anyone to preserve or not to preserve the video recording from cameras located outside of the Dining Hall.

         Kiser testified that only wardens and intelligence officers had access to surveillance video recordings. He said that, if a hearings officer wished to review a surveillance video recording, the hearings officer would have to go to an intelligence officer, who would retrieve the video so the hearings officer could view it. Kiser said that Defendant Mullins was not an investigator at Red Onion. Instead, he said, Lt. Fannin was the Investigator at Red Onion at the time that Roscoe was charged with these disciplinary offenses.

         Kiser said that he knew he reviewed the video recording from the surveillance cameras located inside the Dining Hall when considering Roscoe's appeals. He said he could have reviewed the video recording earlier, but he did not recall if he did. Kiser said that Fannin is the person who downloaded and preserved the video recording from the cameras inside the Dining Hall. Kiser said that he believed that Fannin downloaded and preserved the video recording from inside the Dining Hall on his own initiative, but he admitted that it was possible that he had instructed Fannin to do so.

         Lt. Joe Fannin, the Institutional Investigator at Red Onion, also testified at the evidentiary hearing. Fannin stated that he was instructed to preserve the video recording from inside the Dining Hall due to the serious nature of the incident. He said that he did not recall who instructed him to preserve this video recording. Fannin admitted that he could have downloaded and preserved the video recording of the inside of the Dining Hall on his own initiative, but his recollection was that someone orally had asked him to do so. Fannin said that, if an offender sent a request to preserve a video recording or if a staff member made a request to preserve a video recording, he would preserve it. Fannin said that he never received any request from Roscoe to preserve any video footage related to his disciplinary charges. He said that, to his knowledge, Mullins, Kiser and Officers Childress[1] and Gardner also did not receive any request to preserve the video recording of the outside of the Dining Hall.

         Fannin said he was not sure whether Defendant Mullins had access to view the Rapid Eye surveillance video recordings. He said that he thought Mullins could view the video recordings, but did not know if Mullins could download any of the system's video recordings. Fannin said that he did not recall Mullins ever asking to view any video recordings related to Roscoe's disciplinary charges. Fannin said that he had received requests from Roscoe to preserve other unrelated video recordings on other occasions, but he did not receive any request from Roscoe to preserve any video recordings with regard to this incident. ...


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