JOSEPH F. LEESON, Jr., District Judge.
Plaintiff Kevin Lomax, who was formerly detained at the Curran-Fromhold Correctional Facility ("CFCF") in Philadelphia, initiated this action pursuant to 42 U.S.C. § 1983. Defendant Corizon, Inc.,
In this Opinion, the Court also considers Lomax's claims against the remaining Defendants: the City of Philadelphia, Mayor Nutter, and the CFCF Mental Health Department. The Court dismisses Lomax's claims against these Defendants without prejudice and will permit Lomax to file an amended complaint with respect to his claims against these Defendants.
Lomax filed his Complaint in March 2013, under § 1983, naming as Defendants the City of Philadelphia, Mayor Nutter, the Philadelphia Prison System ("PPS"), Curran Fromhold Correctional Facility ("CFCF"), Corizon, Inc., Dr. David Davis, and the CFCF Medical Health Department. Compl., ECF No. 5. Lomax's Complaint alleges that during his time at CFCF he was forced to sleep in a "boat,"
In September 2013, the Court took Lomax's case out of suspense, appointed legal counsel to Lomax, who previously had been proceeding pro se, and permitted counsel to file an amended complaint. ECF No. 6. Lomax's counsel did not file an amended complaint. In December 2014, a settlement conference was held. See ECF Nos. 9, 10, 12. Following the conference, Lomax's counsel filed a motion to withdraw, stating that he had negotiated and recommended to Lomax a settlement with Defendant City of Philadelphia and provided recommendations to Lomax regarding his claims against the medical providers, but Lomax declined to participate in the settlement or accept counsel's recommendations. ECF No. 13. The Court granted counsel's motion to withdraw, and Lomax again proceeded pro se. ECF No. 15.
In September 2015, Corizon filed an answer to Lomax's Complaint. ECF No. 20. Shortly thereafter, the Court dismissed Lomax's claims against Defendants Philadelphia Prison System ("PPS") and CFCF because these entities are not "persons" for purposes of § 1983, and the Court again permitted Lomax to file an amended complaint.
In July 2016, Corizon filed the present motion for summary judgment. ECF No. 33. In December 2016, this case was reassigned to the calendar of the Undersigned. ECF No. 36. In January 2017, Lomax filed his cross-motion for summary judgment, contending that "C.F.C.F., Corizon Inc., Dr. David Davis, and the Medical Staff erred by utilizing a Physician's Assistant . . . to remedy the plaintiff's ongoing medical issues that were directly caused by the unconstitutional treatment." Def.'s Mot. Summ. J. 3, ECF No. 40.
Lomax testified that he was incarcerated at CFCF in Philadelphia for a period of five months, from December 13, 2012, to May 14, 2013. Lomax Dep. 11:8-11, ECF No. 33-3; Lomax Decl. 1, ECF No. 16. He further testified that during this time, due to prison overcrowding, he was placed in a three-man cell and was forced to sleep in a "boat." Lomax Dep. 16:7-16. According to Lomax, he was too big for the boat, so his ankles, wrist, or neck would hang over the sides. Lomax Dep. 16:11-14. This caused him to suffer neck, back, leg, and wrist pain, as well as headaches. Lomax Dep. 20:2-10. Specifically, Lomax testified that his neck pain would "come and go" during the day but would be "with [him] the whole night." Lomax Dep. 20:17-24. His headaches would occur when he first woke up in the morning and would gradually dissipate during the day. Lomax Dep. 22:20-23:5. His back pain and leg pain were present "all the time" while he was at CFCF. Lomax Dep. 21:3-14.
Lomax testified that although he no longer suffers from headaches and wrist pain, he has continued to suffer back and leg pain after leaving CFCF. Specifically, he stated that he still experiences back spasms when, for example, he puts on his shirt or jacket. Lomax Dep. 21:4-9. He also suffers from continuing sharp pain in his left knee, shin, and ankle; this pain affects him especially when walking a long distance or when coming down out of the top bunk of his cell.
Lomax testified that he submitted approximately two sick call slips while at CFCF,
Lomax's medical records show that on February 7, 2013, in response to complaints of lower back pain from sleeping on the boat, he was seen by a physician's assistant who provided Lomax education about the pain and referred him to the commissary or sick call. Def.'s Mot. Summ. J. Ex. C, at 12, ECF No. 33-4; see also Lomax Dep. 34:9-35:4. He was seen by a nurse on March 6, 2013, for complaints of neck and back pain. Def.'s Mot. Summ. J. Ex. C, at 14; see also Lomax Dep. 35:25-36:14. During this encounter, Lomax's pain scale was reported as a six out of ten; he was instructed to return if his conditions worsened and was given or recommended a muscle rub. Def.'s Mot. Summ. J. Ex. C, at 14. On March 13, 2013, after submitting a grievance regarding his lower back pain, Lomax was again seen by the physician's assistant, who referred him to the commissary for Tylenol. Id. at 13; see also Lomax Dep. 35:5-24.
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law," and a dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the evidence favoring the nonmoving party is "merely colorable" or "not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). The parties must support their respective contentions—that a fact cannot be or is genuinely disputed—by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed. R. Civ. P. 56(c)(1). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
Lomax's claim against Corizon is for a violation of his Eighth Amendment right to receive adequate medical care pursuant to 42 U.S.C. § 1983. This statute permits a claim to be brought against every person who, under color of state law, deprives a plaintiff of a federally protected right. 42 U.S.C. § 1983. To establish an Eighth Amendment claim based on inadequate medical care, an inmate must prove that the defendants were deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Lomax alleges that Corizon's nurses and other staff failed to appropriately treat his complaints of neck and back pain. Because Corizon is "[a] private company contracted by a prison to provide health care for inmates," it "cannot be held liable on a respondeat superior theory; rather, it can only be held liable for constitutional violations if it has a custom or policy exhibiting deliberate indifference to a prisoner's serious medical needs." See Henry v. Buskirk, No. 08-1348, 2011 WL 767540, at *4 (E.D. Pa. Feb. 24, 2011); see Matos v. Prison Health Serv Inc., No. CIV.A. 14-4517, 2015 WL 2126928, at *3 (E.D. Pa. May 7, 2015) ("When an inmate brings a § 1983 claim against a private entity, the analysis is akin to a municipal liability claim under Monell."). Lomax's complaint, "even liberally construed, fails to allege any policy or custom maintained by [Corizon] showing deliberate indifference to prisoners' serious medical needs," nor is there evidence in the record to support such a claim. See Holmes v. Algarin, No. CIV.A. 12-6245, 2013 WL 4763863, at *5 (E.D. Pa. Sept. 4, 2013). Rather, Lomax's allegations and the evidence in the record concern "the isolated treatment of [Lomax] in particular." See Beard v. Corizon Health, Inc., No. CV 14-4129, 2017 WL 368037, at *4 (E.D. Pa. Jan. 24, 2017).
Corizon contends that the undisputed facts show that Dr. Davis should also be dismissed from this case.
"A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). There are two theories of supervisory liability: (1) the defendant-supervisor participated in violating the plaintiff's rights, directed others to violate them, or had knowledge of and acquiesced in his subordinates' violations; and (2) the defendant, in his role as policymaker, acted with deliberate indifference in establishing and maintaining a policy, practice or custom which directly caused the plaintiff's constitutional harm. A.M. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Under the first theory, "[a]lthough a court can infer that a defendant had contemporaneous knowledge of wrongful conduct from the circumstances surrounding a case, the knowledge must be actual, not constructive." Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015).
With respect to the first theory of supervisory liability, it is undisputed that Dr. Davis was not personally involved in Lomax's treatment. Nor, with respect to the second theory, has Lomax identified any policy, practice, or custom established and maintained by Dr. Davis. Accordingly, summary judgment is granted to Dr. Davis.
As noted above, the Court earlier dismissed Lomax's claims against CFCF and the Philadelphia Prison System because these entities are not "persons" under § 1983. The remaining defendants are the City of Philadelphia, Mayor Nutter, and the CFCF Mental Health Department. Because Lomax has failed to state a claim against these Defendants, his claims against them will be dismissed, but Lomax will be granted leave to file an amended complaint.
"[S]ection 1983 liability attaches to a municipality only when `execution of a government's policy or custom . . . inflicts the injury.'" Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)). "Custom . . . can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). "Policy is made when a decisionmaker possessing final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict." Andrews, 895 F.2d at 1480. Lomax has not alleged any such custom or policy. Rather, Lomax's allegations mainly focus on his own injuries, with the exception of his allegation that "[o]ther inmates . . . have developed similar body pains, aches, injuries, etc." But this allegation, by itself, does not identify any particular custom or policy enacted by the City. See McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009) ("To satisfy the pleading standard, [a plaintiff] must identify a custom or policy, and specify what exactly that custom or policy was."). The Court is unable to determine whether Lomax might be able to allege additional facts to state a claim against the City, and he is therefore granted leave to amend his claims against the City of Philadelphia.
As previously discussed, there are two theories of supervisory liability: (1) the defendant-supervisor participated in violating the plaintiff's rights, directed others to violate them, or had knowledge of and acquiesced in his subordinates' violations; and (2) the defendant, in his role as policymaker, acted with deliberate indifference in establishing and maintaining a policy, practice or custom which directly caused the plaintiff's constitutional harm. A.M., 372 F.3d at 586. Here, Lomax has failed to allege any personal involvement on the part of Nutter under the first theory of supervisory liability.
With respect to the second theory of supervisory liability, when relying on policy or practice to establish supervisor liability, the plaintiff must:
Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001). Additionally, a "plaintiff must specifically identify the acts or omissions of the supervisors that show deliberate indifference, and suggest to the Court a relationship between the `identified deficiency' of a policy or custom and the injury suffered." Cain v. Nutter, No. CV 15-5524, 2016 WL 7031891, at *2 (E.D. Pa. Dec. 1, 2016). "[P]roof of the mere existence of an unlawful policy or custom is not enough to maintain a § 1983 action." Bielevicz, 915 F.2d at 850. Lomax's conclusory allegations about the City's policy and procedures do not suffice to make the requisite showing. Lomax is granted leave to amend his claims against Mayor Nutter.
Lomax's Complaint does not include any allegations specifically concerning the CFCF Mental Health Department.
For the reasons set forth above, summary judgment is granted in favor of Corizon and Dr. Davis. Lomax's claims against the City of Philadelphia, Mayor Nutter, and the CFCF Mental Health Department are dismissed without prejudice, and Lomax is given an opportunity to amend his complaint as to these three Defendants only. Lomax is advised that the "amended complaint must be complete in all respects." Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992). It must be a new pleading which stands by itself without reference to the original complaint. Id. The amended complaint "may not contain conclusory allegations[; r]ather, it must establish the existence of specific actions by the defendants which have resulted in constitutional deprivations." Id. (citing Rizzo v. Goode, 423 U.S. 362 (1976)). "The amended complaint must also be `simple, concise, and direct' as required by the Federal Rules of Civil Procedure." Id. (citing Fed. R. Civ. P. 8(e)(1)). A separate order follows.
Lomax Decl., ECF No. 16.
