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Campbell v. Sherrill

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

July 27, 2018

ANTHONY D. CAMPBELL, Plaintiff,
v.
DR. JOHN SHERRILL, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         Anthony Dean Campbell, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983, alleging that a jail doctor provided him with inadequate medical care for back pain. After review of the record, I conclude that defendants' motion to dismiss must be granted.

         I. Facts as Alleged

         On May 15, 2016, while Campbell was incarcerated at the Bristol City Jail (“the jail”), he allegedly “was assaulted by officer Galvez” and “end[ed] up with back injury.”[1] Comp. 2, ECF No. 1. A nurse “prescribed Tylenol or Ibuprofen for a few days.” Pl.'s Resp. 2, ECF No. 30. “[I]t took one month for the jail doctor to agree to see” Campbell. Comp. at 2. Campbell was dissatisfied with the doctor's findings and treatment.

         On July 18, 2016, Campbell wrote an inmate grievance, stating:

I have again requested that my arm and back be look[ed] at there has been no improvement in my arm and my back has gotten worse. My request[s] have been ignored and I am suffering.
I would like to have a second opinion and X-rays, and/or MRI. These problems weren't with me until the incident happened here, so I would like to have it fixed.

Add'l Evid. 1, ECF No. 4. A sergeant responded: “You hav[e]n't been ignored, the Jail Physician has examined your issues and he has spoken with you about these issues. I will again ask [him] if he would like to see you again.” Id.

         Campbell appealed this response, complaining of pain in his arm and worsening pain in his back and leg, and asking again for a second opinion, X-rays and an MRI. In August 2016, officers responded that Dr. Sherrill, from his examination of Campbell, believed his “injuries [were] associated to long term degeneration” and did not “warrant further diagnosis or treatment” at that time. Id. at 2. Campbell appealed, repeating his complaints and stating his belief that the doctor's findings were “wrong.” Id. The sheriff responded to Campbell's final appeal: “Mr. Campbell, I have reviewed your grievance and your medical treatment regarding your complaints. I am aware that Dr. Sherrill has advised you that your condition does not warrant further diagnosis or treatment at this time. We are not in a position to override the jail doctor's advice/treatment.” Id. at 3.

         On August 22, 2016, Campbell filed a § 1983 lawsuit against the sheriff's office. See Campbell v. Bristol Virginia Sheriff's Office, No. 7:16CV00388 (W. D. Va. Nov. 2016) (dismissed without prejudice).[2] At some point, Dr. Sherrill ordered an MRI of the lumbar spine that Campbell underwent on September 21, 2016. The report of the MRI findings indicated “degenerative endplate changes” and “intervertebral osteochondrosis L4-5 and L5-S1 with midline disc extrusions at both levels causing mild central canal stenosis.”[3] Pl.'s Resp. Ex. A, ECF No. 30-1.

         In the present case, Campbell sues the jail doctor, Dr. John D. Sherrill, [4] seeking monetary damages. Dr. Sherrill has filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Campbell has responded, making this matter ripe for consideration. As relief, he seeks compensation for pain and suffering.[5]

         II. Standard of Review

         “In ruling on a 12(b)(6) motion, a court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.” Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty., Md., 684 F.3d 462, 467 (4th Cir. 2012); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[L]egal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts” and thus, need not be taken as true. Nemet Chevrolet, Ltd. V. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). “[T]he complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).

         III. ...


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