BLD-247                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1679
                                      ___________

                                EDDIE ALMODOVAR,
                                           Appellant

                                            v.

                       CITY OF PHILADELPHIA; C.O.HARRIS
                      ____________________________________

                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                               (D.C. Civil No. 2:11-cv-01781)
                   District Judge: Honorable William H. Yohn, Junior
                      ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   May 16, 2013

       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                              (Opinion filed: June 13, 2013)
                                       _________

                                       OPINION
                                       _________
PER CURIAM

      Pro Se Appellant Eddie S. Almodovar, appeals from an order of the United States

District Court for the Eastern District of Pennsylvania granting Appellee City of

Philadelphia‟s motion for summary judgment concerning the civil rights complaint he
filed pursuant to 42 U.S.C. § 1983. Because this appeal does not present a substantial

question, we will summarily affirm. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

                                              I.

       Because we write primarily for the parties, we need only recite the facts necessary

for our discussion. On March 11, 2011, Almodovar filed a civil rights complaint against

the Philadelphia prison system and Correctional Officer Harris. According to

Almodovar, on May 16, 2009, while he was housed at Philadelphia Industrial

Correctional Center (“PICC”), two inmates approached and threatened him during the

first guard shift. After the guard shift changed, Almodovar was attacked by two inmates,

one of whom had a knife. Almodovar was stabbed multiple times. After the fight was

broken up, he was taken to Frankfort Hospital and received stitches. Almodovar alleged

that Harris facilitated the attack against him and that the prison system‟s lack of training,

oversight, and rules allowed his assailants to obtain the knife used in the attack.

       In January 2012, the City of Philadelphia was substituted as a defendant for the

Philadelphia prison system and in June 2012, Correctional Officer Harris was dismissed

for failure to serve. On January 8, 2013, the City of Philadelphia, the only remaining

defendant, filed a motion for summary judgment. The District Court granted Almodovar

an extension of time to respond to the motion until February 20. 2013.1 After Almodovar




1
 Under the Eastern District Local Rules of Civil Procedure Rule 7.1(c), Almodovar had
fourteen days to response to the summary judgment motion.
                                              2
failed to do so, the District Court granted the summary judgment motion by order entered

February 27, 2013.2 Almodovar filed a timely appeal.

                                             II.

       We have jurisdiction under 28 U.S.C. § 1291. We review a district court‟s

dismissal for failure to prosecute for abuse of discretion, acknowledging that dismissal

“is only appropriate in limited circumstances and doubts should be resolved in favor of

reaching a decision on the merits.” Liggon-Redding v. Estate of Sugarman, 

, 260 n.1 (3d Cir. 2011) (citations omitted). We review the District Court's denial of

the request for appointment of counsel and leave to amend a complaint for abuse of

discretion. See Tabron v. Grace, 

, 155 n. 3, 158 (3d Cir.1993); Renchenski v.

Williams, 

, 324–25 (3d Cir.2010). We exercise plenary review over the

District Court‟s grant of summary judgment. Howley v. Mellon Fin. Corp., 

, 792 (3d Cir. 2010). In considering the record, we “apply[] the same standard that

the court should have applied.” 

only proper where no genuine

issue exists as to any material fact and the movant is entitled to judgment as a matter of


2
 The District Court also denied Almodovar‟s motion to add additional defendants as
untimely. A motion for appointment of counsel, which Almovodar filed on February 8,
2013, was also before the Court. On May 24, 2011, the District Court granted
Almodovar‟s request for appointment of counsel and requested that counsel from the
Prisoner Civil Rights Panel accept appointment. On August 31, 2011, the District Court
advised Almodovar that it was unable to obtain a volunteer attorney. Thus, the District
Court dismissed Almodovar‟s motion for appointment of counsel as duplicative in its
February 26, 2013 order. Additionally, the District Court dismissed Almodovar‟s request
for additional time to respond to the motion for summary judgment until counsel has been
appointed.
                                             3
law. Fed. R. Civ. P. 56(a). We may summarily affirm on any basis supported by the

record if the appeal does not present a substantial question. Murray v. Bledsoe, 

, 247 (3d Cir. 2011) (per curiam).

                                             III.

       The District Court granted the City of Philadelphia‟s motion for summary

judgment for lack of prosecution, not on the merits. Thus, our decision in Poulis v. State

Farm Fire and Casualty Company, 

(3d Cir. 1984), applies and the District

Court should have engaged in a balancing test of the six factors outlined in that case to

decide whether to dismiss the case as a sanction. See 

.

Nonetheless, we conclude that remanding this matter to the District Court for

consideration of the Poulis factors would be futile because Almodovar does not have a

valid cause of action against the City of Philadelphia.

       Plaintiffs who seek to impose liability on local governments under § 1983 must

prove that “„action pursuant to official municipal policy‟ caused their injury.” Connick v.

Thompson, 

, 1359 (2011) (quoting Monell v. Department of Social

Services, 

, 691 (1978)). “Only where a municipality‟s failure to train its

employees in a relevant respect evidences a „deliberate indifference‟ to the rights of its

inhabitants can such a shortcoming be properly thought of as a city „policy or custom‟

that is actionable under § 1983.” City of Canton v. Harris, 

, 389 (1989); see

Woloszyn v. County of Lawrence, 

, 324 (3d Cir. 2005). Here, Almodovar‟s

complaint includes nothing more than a conclusory allegation that “lack of training,
                                              4
oversight and rules” resulted in his assailants getting access to the knife used in the attack

against him. Indeed, Almodovar admitted in his deposition that the prison system does

not permit corrections officers to deliver weapons to prisoners, and he does know of any

grievance or complaint filed by other prisoners complaining of this behavior.

Almodovar‟s incident is the only incident on the record allegedly resulting from the

Defendant‟s policy. However, the Supreme Court has held that a single incident of

unconstitutional activity is not sufficient to impose liability under Monell “unless proof

of the incident includes proof that it was caused by an existing, unconstitutional

municipal policy, which policy can be attributed to a municipal policymaker.” Oklahoma

City v. Tuttle, 

, 24 (1985). There is no such proof here. Thus, Almodovar‟s

claim against the City of Philadelphia fails.

                                                IV.

       For the foregoing reasons, no substantial question is presented and we will

summarily affirm the judgment of the District Court.3




3
 We agree with the District Court‟s denial of Almodovar‟s motion to add additional
defendants as untimely, the denial of his motion for appointment of counsel as
duplicative, and the denial of his motion for additional time to respond to the motion for
summary judgment until counsel has been appointed as moot.
                                                5