Roscoe v. Barksdale et al

Filing 53

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 3/31/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
EMMITT G. ROSCOE,
Plaintiff,
v.
EARL R. BARKSDALE, et al.,
Defendants.

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Civil Action No. 7:16-cv-00147

By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Emmitt G. Roscoe, a Virginia inmate proceeding pro se, filed a civil rights action
pursuant to 42 U.S.C. § 1983 concerning his care following the removal of his wisdom teeth.
Defendants Dr. Moore and Nurse Mullins filed a motion to dismiss and the remaining defendants
filed a motion for summary judgment. Roscoe has responded to both motions, and this matter is
ripe for disposition.1 Having reviewed the record, the court will grant in part and deny in part
defendants Dr. Moore and Nurse Mullins’s motion to dismiss, and grant defendants Barksdale,
Messer, Brock, Gibson, Lawson, Addington, and Smith’s motion for summary judgment.
Before turning to the defendants’ motions, the court addresses a number of other motions
that Roscoe has filed. First, Roscoe has filed a motion seeking preliminary injunctive relief,
alleging that officers have threatened him, planted a weapon in his cell for which he received a
disciplinary conviction, and placed him in administrative segregation. Roscoe asks the court to
enjoin the defendants from engaging in any retaliatory acts. (Dkt. No. 37.)
Preliminary injunctive relief is an extraordinary remedy that courts should apply
sparingly. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991).

1

To the extent Roscoe may be attempting to raise any new claims in his responses to the motion to dismiss
or motion for summary judgment, the court notes that any proposed amendments must be made in accordance with
Rule 15 of the Federal Rules of Civil Procedure. Because his are not, any new claims raised in Roscoe’s responses
are not considered by the court at this time. Roscoe may raise any such claims in a separate action after exhausting
available administrative remedies. 

As a preliminary injunction temporarily affords an extraordinary remedy prior to trial that can be
granted permanently after trial, the party seeking the preliminary injunction must demonstrate by
a “clear showing” that: (1) he is likely to succeed on the merits at trial; (2) he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor;
and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20, 22 (2008). The party seeking relief must show that the irreparable harm he faces in the
absence of relief is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd.,
952 F.2d at 812. Without a showing that the plaintiff will suffer imminent, irreparable harm, the
court cannot grant preliminary injunctive relief. Rum Creek Coal Sales, Inc. v. Caperton, 926
F.2d 353, 360 (4th Cir. 1991). “The possibility that adequate compensatory or other corrective
relief will be available at a later date . . . weighs heavily against a claim of irreparable harm.”
Va. Chapter, Associated Gen. Contractors, Inc. v. Kreps, 444 F. Supp. 1167, 1182 (W.D. Va.
1978) (quoting Va. Petroleum Jobbers Ass’n. v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C.
Cir. 1958)).
Having reviewed Roscoe’s motion, the court concludes that he has not made a “clear
showing” that he is likely to suffer “actual and imminent” irreparable harm in the absence of
preliminary injunctive relief. Verbal threats or harassment by prison officials, even to the extent
they cause an inmate fear or emotional anxiety, do not amount to a constitutional violation. See,
e.g., Morrison v. Martin, 755 F. Supp. 683, 687 (E.D.N.C. 1990). Roscoe does not allege that he
was denied a hearing or due process concerning the “planted” weapon which he was charged
with possessing. And changes “in a prisoner[’s] location, variations of daily routine, changes in
conditions of confinement (including administrative segregation), and the denial of privileges
[are] matters which every prisoner can anticipate [and which] are contemplated by his original

2 

sentence to prison.” Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991). Roscoe has failed to
demonstrate that any alleged violation of his rights cannot be adequately addressed at a trial on
their merits. Accordingly, the court will deny Roscoe’s motion seeking preliminary injunctive
relief.
Roscoe also has filed three motions to amend. Pursuant to Federal Rule of Civil
Procedure 15(a), leave to amend shall be freely given when justice so requires. Fed. R. Civ. P.
15(a). However, leave to amend a pleading should be denied “when the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the
amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). An
amendment is considered futile if the amended complaint could not survive a motion to dismiss
under Rule 12(b)(6). United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370,
376 (4th Cir. 2008).
In the first motion (Dkt. No. 45), Roscoe seeks to add P. Scarberry, the head of food
services, and B. Taylor, a food services employee, as defendants to this action. As Roscoe
alleged facts against these individuals in his original complaint and referred to them as
defendants in that pleading, it appears that he mistakenly omitted their names in his initial list of
defendants. Accordingly, the court will grant Roscoe’s motion to amend to add these defendants
and direct the clerk to notify them of the action.
In the second motion (Dkt. No. 49), Roscoe states that he wants to “fix” his complaint
and add claims. In support of his motion, Roscoe alleges that, as “retaliation and harassment,”
he is “continuously being charged with bogus institutional infractions” since he filed this case
and that two of the three charges against him have been dismissed. He also states that he wants
to “bring [a] claim about [his] religious rights being violated during Ramadan.”

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To state a claim for relief under § 1983, a plaintiff must allege facts indicating that
plaintiff has been deprived of rights guaranteed by the Constitution or laws of the United States
and that this deprivation resulted from conduct committed by a person acting under color of state
law. West v. Atkins, 487 U.S. 42 (1988). Roscoe’s allegations are far too vague and conclusory
to state a cognizable constitutional claim. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)
(noting that bare assertions of retaliation do not establish a claim of constitutional dimension).
Further, Roscoe does not allege any facts against any of the defendants, or even against any
person. Still further, even if the proposed amendments were not futile, it appears that the
allegations may arise out of an occurrence or series of occurrences separate from the allegations
in this case and would be more appropriately made, if properly alleged, in a separate case. See
Fed. R. Civ. P. 18 and 20. Based on the foregoing, the court finds that Roscoe’s amendments
would be futile; thus, the court will deny his second motion to amend. The court notes that
denial of Roscoe’s motion to amend does not preclude him from raising these claims in greater
detail in a separate civil action after he has exhausted available administrative remedies.
Roscoe’s third motion to amend (Dkt. No. 50) is contained within the same document as
his second motion to amend (Dkt. No. 49), but has been docketed separately. In it, Roscoe
indicates that he wishes to amend his responses in opposition to defendants’ motions to dismiss
and for summary judgment; however, he provides no information on how he would like to
amend those responses. Accordingly, the court denies Roscoe’s third motion to amend.
I. BACKGROUND
On April 8, 2015, Roscoe was taken from Red Onion State Prison (Red Onion) to a
private dentist’s office to have his wisdom teeth removed. Roscoe alleges that, when he arrived
back at Red Onion after the procedure, defendant Dr. Moore, a dentist at Red Onion, did not
evaluate him and did not prescribe any pain medication or a soft diet. Roscoe contends that he
4 

“was unable to eat anything” and “endure[d] pain for a month [or] more.” (Compl. ¶ 24, Dkt.
No. 1.)
Despite not having an order for a soft diet, at dinner time on April 8, 2015, Roscoe was
given a soft diet tray because a food service worker thought he “look[ed] like [he couldn’t]
chew.” On April 9, 2015, defendant Officer Smith gave Roscoe a regular food tray. When
Roscoe “repeatedly” told Smith that he was supposed to have a soft food tray, Smith said he
would check on it, but he never brought one back. Roscoe alleges that Smith also did not feed
him dinner that day. (Id. ¶ 25 and p. 8.)2
On April 10, 2015, defendant Officer Gibson brought Roscoe a Common Fare food tray.
When Roscoe complained that he should have a soft diet tray, Gibson took the tray back to the
kitchen and was told by defendant Taylor, a food services worker, that Roscoe “was not down
for a soft diet tray” and that Gibson should take Roscoe a regular tray which had fried potato
pancakes and “turkey ham.” Roscoe asked Gibson for an emergency grievance form, and
Gibson gave it to him. Roscoe completed the emergency grievance and tried to give it to
defendant Officer Brock, who told Roscoe, “Fuck you and that emergency grievance. I don’t
sign them shits for people who are snitching.” Roscoe then tried to give the emergency
grievance to defendant Officer Lawson, who said, “You know what paperwork can do for you.”
Roscoe responded that he hoped it would get him medical attention, and Lawson states “Yeah,
not the kind you [are] seeking. I’m not signing it.” (Id. at 8.)
Shortly thereafter on the same morning, Unit Manager (UM) Swiney came to Roscoe’s
pod. When he saw how swollen Roscoe’s mouth was, UM Swiney called Dr. Moore and asked
him to assess Roscoe and to “prescribe him proper care to aid his healing.” Roscoe alleges that

2

Most of the complaint’s paragraphs are numbered, but those appearing on pages 8 and 9 are not.

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Dr. Moore “assured” UM Swiney that he would assess Roscoe and prescribe him a soft diet tray
and some additional pain medication. (Id. at 8–9)
Later that day, Gibson and defendant Officer Addington gave Roscoe a regular lunch tray
that had a tag on in indicating that it was for Roscoe and that it was a soft diet tray. Roscoe
complains, however, that “everything that on the tray was not soft enough to where [he] could
eat it without chewing.”3 When Roscoe told Addington that he was on a soft diet, Addington
told him that he was “not going back to the kitchen [and Roscoe should just] smush it with [his]
spoon.” For dinner that night, Roscoe went to the “chow hall” to eat and was given a regular
tray. (Id. at 9.)
On April 11, 2015, Roscoe was given a vegetarian food tray at lunch time and was told
that, “beans, rice, and cabbage [do] not have to be chewed.” Roscoe spoke with food services
worker Taylor about the tray, and Taylor told Roscoe that defendant Scarberry, the head of food
services, told Taylor “and other staff” to give Roscoe a vegetarian tray for a soft diet. He alleges
that he filed three informal complaints on April 12, 2015, concerning his diet and failure to
receive medication.4 (Id.)
On April 13, 2015, during morning pill pass, defendant Nurse Mullins gave Roscoe
improper “dosages” of his “prescribed medication,” which included Boost drinks and medicated
mouthwash. During afternoon pill pass the same day, Nurse Mullins “shorted” Roscoe on his
“med[ication]s” again and told him, “I didn’t give you your meds this morning because you said
I [have] been shorting your meds.” (Id.)

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The food tray included “beans, rice, and baked dinner.”

4

Only two of the three informal complaints appear in the record before the court, and both appear to have
been signed by Roscoe on April 12, 2015. Only one of them is marked as received or responded to, and that one
indicates that it was received on April 27, 2015.

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II. DISCUSSION
A. Motion to Dismiss Standard
Dr. Moore and Nurse Mullins filed a motion to dismiss Roscoe’s complaint. A motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a
complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering a Rule
12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must
draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Legal conclusions in the guise of factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although a complaint “does not need detailed factual allegations, a plaintiff’s obligation
to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of a cause of action’s elements will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level,” id., with all the allegations in the
complaint taken as true and all reasonable inferences drawn in the plaintiff’s favor, Chao v.
Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does “not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Consequently, “only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly,
550 U.S. at 556). A claim is plausible if the complaint contains “factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”
and if there is “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.
In order to allow for the development of a potentially meritorious claim, federal courts
have an obligation to construe pro se pleadings liberally. See, e.g., Boag v. MacDougall, 454
U.S. 364, 365 (1982) (citation omitted). Moreover, “[l]iberal construction of the pleadings is
particularly appropriate where . . . there is a pro se complaint raising civil rights issues.” Smith v.
Smith, 589 F.3d 736, 738 (4th Cir. 2009) (quoting Loe v. Armistead, 582 F.2d 1291, 1295 (4th
Cir. 1978)). Nevertheless, “[p]rinciples requiring generous construction of pro se complaints are
not . . . without limits.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). “A
pro se plaintiff still must allege facts that state a cause of action.” Bracey v. Buchanan, 55 F.
Supp. 2d 416, 421 (E.D. Va. 1999) (quoting Sado v. Leland Mem’l Hosp., 933 F. Supp. 490, 493
(D. Md. 1996)).
1. Denial of medical care
In their motion to dismiss, Dr. Moore and Nurse Mullins argue that Roscoe has not
demonstrated that either of them acted with deliberate indifference or that Roscoe’s “dental
needs and related treatment,” were a sufficiently serious medical need.
To state a cognizable Eighth Amendment claim for denial of medical care, a plaintiff
must allege facts sufficient to demonstrate that jail officials were deliberately indifferent to a
serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Staples v. Va. Dep’t of Corr.,
904 F. Supp. 487, 492 (E.D. Va. 1995). A “serious medical need” is “one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Iko v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008). A prison official is “deliberately indifferent” only if he “knows of and

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disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837
(1994).
a. Dr. Moore
Roscoe alleges that on April 8, 2015, Dr. Moore did not evaluate him when he returned to
Red Onion after having his wisdom teeth removed and did not prescribe Roscoe a soft diet or
“any pain medication,” which left him “unable to eat anything” and caused him to “endure a
month and more of pain day and night.” (Compl. ¶ 25.) Roscoe contends that Dr. Moore has
assessed and prescribed pain medication and a soft diet to other inmates who have had their
wisdom teeth removed. He also alleges that Dr. Moore “was aware” that Roscoe had been on a
waiting list to have his wisdom teeth removed for over a year and that Roscoe’s “condition” was
“in need of” medical attention after the operation. (Id. ¶ 17.) Roscoe further states that on April
10, 2015, after seeing how swollen Roscoe’s mouth was, UM Swiney called Dr. Moore and
asked Dr. Moore if he had seen Roscoe; Dr. Moore said no; UM Swiney requested that Dr.
Moore assess Roscoe and prescribe “proper care to aid his healing”; and Dr. Moore assured UM
Swiney that he would assess Roscoe and prescribe him a soft diet tray and some additional pain
medication. (Id. at 8–9.) Accepting all factual allegations in the complaint as true and drawing
all reasonable inferences in favor of Roscoe, the court finds that Roscoe’s allegations are
sufficient to state a plausible claim that Dr. Moore was deliberately indifferent to a serious
medical need. Therefore, the court will deny the motion to dismiss as to this claim.
b. Nurse Mullins
Roscoe alleges that on April 13, 2015, during morning pill pass, he asked Nurse Mullins
why she was not giving him “proper dosages of his prescribed medication,” specifically Boost
drink supplements and medicated mouthwash. Later that day, during afternoon pill pass, Nurse

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Mullins “again shorted” Roscoe and told him that she “didn’t give [him his] meds [that] morning
because [he] said [she had] been shorting” him. Accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in favor of Roscoe, the court finds that
Roscoe’s allegation that Nurse Mullins knowingly failed to provide him with medication
prescribed by the doctor is sufficient to state a plausible claim that Nurse Mullins was
deliberately indifferent to a serious medical need. Therefore, the court will deny the motion to
dismiss as to this claim.
2. Qualified immunity
Dr. Moore and Nurse Mullins assert that they are entitled to qualified immunity. “The
burden of proof and persuasion with respect to a defense of qualified immunity rests on the
official asserting that defense.” Meyers v. Baltimore Cty., Md., 713 F.3d 723, 731 (4th Cir.
2013). Dr. Moore and Nurse Mullins have not met their burden.
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant asserts
the affirmative defense of qualified immunity, the court must determine “whether the facts that a
plaintiff has alleged . . . make out a violation of a constitutional right[,]” and “whether the right
at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. at 232
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). In determining whether the law was clearly
established, the court “‘ordinarily need not look beyond the decisions of the Supreme Court, [the
Fourth Circuit Court of Appeals], and the highest court of the state in which the case arose.’”

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Lefemine v. Wideman, 672 F.3d 292, 298 (4th Cir. 2012) (quoting Edwards v. City of Goldsboro,
178 F.3d 231, 251 (1999)), vacated on other grounds, 133 S. Ct. 9 (2012).
In support of their qualified immunity argument, Dr. Moore and Nurse Mullins state that
Roscoe’s “allegations do not demonstrate any violation of any clearly established law by Dr.
Moore or Nurse Mullins . . . let alone any violation of any clearly established law of which a
reasonable officer should have been aware.” The court has already determined that the facts, as
the court must view them for purposes of a motion to dismiss, are sufficient to state plausible
claims that Dr. Moore’s and Nurse Mullin’s conduct amounted to a constitutional violation.
Moreover, a reasonable officer would have known at that time that failing to provide an inmate
adequate medical treatment, assessment, or medication for a serious medical need would be
unlawful. See, e.g., Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990). Accordingly, the court
will deny Dr. Moore and Nurse Mullin’s motion to dismiss on the basis of qualified immunity.
3. Official capacity claims—damages
To the extent Roscoe brings this action against the Dr. Moore and Nurse Mullins in their
official capacities for monetary damages, such relief is not available in § 1983 cases. Will v.
Michigan Dep’t of State Police, 491 U.S. 58 (1989). Therefore, the court will grant defendants’
motion to dismiss Roscoe’s claims for monetary damages against defendants in their official
capacities.
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “As to materiality, . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the

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entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is inappropriate “if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.;
see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
However, if the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50
(internal citations omitted). In considering a motion for summary judgment under Rule 56, a
court must view the record as a whole and draw all reasonable inferences in the light most
favorable to the nonmoving party. See id. at 255; Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994).
A court must grant a motion for summary judgment if, after adequate time for discovery,
the nonmoving party fails to make a showing “sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party cannot defeat a
properly supported motion for summary judgment with mere conjecture and speculation. Glover
v. Oppleman, 178 F. Supp. 2d 622, 631 (W.D. Va. 2001) (“Mere speculation by the non-movant
cannot create a genuine issue of material fact.”). The trial judge has an “affirmative obligation”
to “prevent ‘factually unsupported claims and defenses’ from proceeding to trial.” Felty v.
Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Celotex, 477 U.S. at 324–
25).
C. Exhaustion
Defendants Barksdale, Messer, Brock, Gibson, Lawson, Addington, and Smith argue that
Roscoe failed to properly exhaust available administrative remedies as to any of the claims

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against them. Having reviewed the record, the court agrees and, therefore, will grant the motion
for summary judgment.
VDOC Operating Procedure (OP) § 866.1, Offender Grievance Procedure, is the
mechanism used to resolve inmate complaints and requires that, before submitting a formal
grievance, the inmate must demonstrate that he has made a good faith effort to resolve the
grievance informally through the procedures available at the institution to secure institutional
services or resolve complaints.
If the informal resolution effort fails, the inmate must initiate a regular grievance by
filling out the standard “Regular Grievance” form. Prior to review of the substance of a
grievance, prison officials conduct an “intake” review of the grievance to assure that it meets the
published criteria for acceptance. A grievance meeting the criteria for acceptance is logged in on
the day it is received. If the grievance does not meet the criteria for acceptance, prison officials
complete the “Intake” section of the grievance and return the grievance to the inmate. If the
inmate desires a review of the intake decision, he must send the grievance form to the Regional
Ombudsman.
The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[E]xhaustion is mandatory
under the PLRA and . . . unexhausted claims cannot be brought in court.” Jones v. Bock, 549
U.S. 199, 211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). A prisoner must
exhaust all available administrative remedies, whether or not they meet federal standards or are
plain, speedy or effective, Porter, 534 U.S. at 524, and even if exhaustion would be futile

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because those remedies would not provide the relief the inmate seeks. Davis v. Stanford, 382 F.
Supp. 2d 814, 818 (E.D. Va. 2005). Failure to exhaust all levels of administrative review is not
proper exhaustion and will bar an inmate’s § 1983 action. Woodford v. Ngo, 548 U.S. 81, 88–89
(2006).
Ordinarily, an inmate must follow the required procedural steps in order to exhaust his
administrative remedies. Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008); see
Langford v. Couch, 50 F. Supp. 2d 544, 548 (E.D. Va. 1999) (“[T]he second PLRA amendment
made clear that exhaustion is now mandatory.”). But the court is “obligated to ensure that any
defects in administrative exhaustion were not procured from the action or inaction of prison
officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006). An inmate need only exhaust “available” remedies.
42 U.S.C. § 1997e(a). An administrative remedy is not available “if a prisoner, through no fault
of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d at 725.
1. Denial of pain medication and a soft diet tray
Defendants argue that Roscoe did not properly exhaust available administrative remedies
concerning his claims that he was denied pain medication and a soft diet tray. According to
Roscoe, he filed three informal complaints on April 12, 2015, one to the medical department, one
to food services, and one to security, alleging that he had not been prescribed and/or was not
receiving pain medication or a soft diet. On May 10, 2015, Roscoe timely filed a regular
grievance alleging that he had not been prescribed and/or was not receiving pain medication or a
soft diet, that the nurse was not properly giving him his medications, and that he had not received

14 

the soft diet per Dr. Moore’s order.5 The grievance was rejected because it contained more than
one issue, in violation of OP § 866.1(VI)(2)(a) and the instructions for filing listed at the top of
the grievance form. Roscoe filed a second regular grievance on May 17, 2015, alleging that he
was not prescribed pain medication or a soft diet. The grievance was rejected as untimely filed.
Roscoe appealed the rejections of both of his grievances, to no avail.
It is clear that administrative remedies were available to Roscoe concerning these claims.
He filed informal complaints concerning his allegations. He also had timely access to a regular
grievance to further exhaust his administrative remedies.6 Roscoe’s choice to include multiple
issues on the same form, in violation of OP, and his choice to file it at the very end of the thirtyday time limit for filing grievances do not make the administrative remedies unavailable to him.
Further, as his grievances were rejected at intake, it is clear that he did not follow the required
procedural steps to properly exhaust administrative remedies. Accordingly, the court concludes
that Roscoe’s claims concerning denial of pain medication and a soft diet are unexhausted, and
the court will grant the motion for summary judgment as to these claims.
2. All other claims against defendants Barksdale, Messer, Brock, Gibson, Lawson,
Addington, and Smith
It is undisputed that Roscoe did not file a regular grievance concerning any of his other
allegations against defendants Barksdale, Messer, Brock, Gibson, Lawson, Addington, and
Smith. And Roscoe has not demonstrated that the grievance process was otherwise unavailable

5

The court notes the apparent inconsistency between the allegations that he was not prescribed a soft diet
and did not receive the soft diet that the doctor prescribed; however, the court need not resolve the factual
discrepancy.
6

In his motion seeking preliminary injunctive relief, Roscoe alleges that in attempting to “grievance this
situation” (it is unclear whether he is referring to emergency grievances or regular grievances), he was threatened by
officers, had a weapon planted in his cell, and “subjected” to segregation. However, he also states that he “never
stop[p]ed pushing.” And, in fact, he did file a regular grievance concerning these claims. To the extent he is
complaining that he was denied emergency grievances, the court notes that filing an emergency grievance is not a
required step in the process of exhausting administrative remedies under OP § 866.1.

15 

to him. Although he complains the defendant Messer, the Grievance Coordinator, makes it
difficult for inmates to file grievances because the grievances “somehow never satisf[y] the
grievance procedure,” he has not demonstrated that the grievance process was actually
unavailable to him.7 He was able to file informal complaints, grievances, and appeals as to other
claims, and he has not demonstrated why he did not even attempt to exhaust these claims.
Accordingly, the court concludes that all of Roscoe’s other claims against defendants Barksdale,
Messer, Brock, Gibson, Lawson, Addington, and Smith are unexhausted; therefore, the court will
grant defendants’ motion for summary judgment as to these claims.
III. CONCLUSION
For the reasons stated herein, defendants Dr. Moore and Nurse Mullins’s motion to
dismiss is granted in part and denied in part and defendants Barksdale, Messer, Brock, Gibson,
Lawson, Addington, and Smith’s motion for summary judgment is granted.8
An appropriate order will be entered.
Entered: March 31, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

7

The court also notes that an inmate has no constitutional or other federal legal right to participate in
grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
8

Roscoe also filed a “motion to receive declarations” (Dkt. No. 42) wherein he seeks the court’s assistance
in obtaining declarations from various inmates who will either corroborate Roscoe’s allegations or provide their
personal accounts of similar incidents that happened to them. Rule 26(b)(1) states that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case . . . .” The court finds that the proposed declarations are not proportional to the needs of the case
because they would not help resolve the current motions to dismiss and for summary judgment. Accordingly, the
court will deny his motion without prejudice. However, if after the remaining defendants have filed motions for
summary judgment, Roscoe believes that this discovery is relevant and proportional to the needs of the case, he may
renew his motion.  

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