LOMAX v. CITY OF PHILADELPHIA et al

Filing 44

MEMORANDUM/OPINION THAT 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. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 3/29/17. 3/30/17 ENTERED AND COPIES MAILED TO PRO SES' AND E-MAILED.(ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
KEVIN LOMAX,

:
:
Plaintiff,
:
:
v.
:
:
CITY OF PHILADELPHIA; MAYOR NUTTER; :
PHILADELPHIA PRISON SYSTEM;
:
CFCF; CORIZON, INC.; DR. DAVID DAVIS; and :
CFCF MENTAL HEALTH DEPT.,
:
:
Defendants.
:
__________________________________________

No. 2:13-cv-01078

OPINION
Defendant Corizon, Inc.’s Motion for Summary Judgment, ECF No. 33: Granted
Plaintiff’s Motion for Summary Judgment, ECF No. 40: Denied
Joseph F. Leeson, Jr.
United States District Judge
I.

March 29, 2017

Introduction
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., 1 moves for summary judgment on Lomax’s claims and also moves for the
dismissal of Defendant Dr. David Davis from this case. Lomax has filed a cross-motion for
summary judgment. Because Corizon has shown that there is no dispute as to any material fact
with respect to Lomax’s claims against both Corizon and Dr. Davis, and that both Corizon and

1

“Corizon is a private corporation. It has a contract with the Philadelphia Prison System to
provide healthcare for inmates.” Toro v. Nutter, No. CIV.A. 13-7552, 2015 WL 4667670, at *3
(E.D. Pa. Aug. 6, 2015).
1

Dr. Davis are entitled to judgment as a matter of law, Corizon’s motion is granted and Lomax’s
motion is denied.
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.
II.

Background

A.

Procedural History
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,” 2 that he suffered neck, back, leg, and wrist pain, as well as
headaches, as a result, and that these ailments were not properly treated by the prison’s medical
personnel. 3 He further alleges that “[o]ther inmates . . . have developed similar body pains,
aches, injuries, etc.” With his Complaint, Lomax also filed an application to proceed in forma
pauperis (“IFP”). ECF No. 1. On March 28, 2013, the Court granted Lomax’s IFP motion,
2

A “boat” is a plastic makeshift bed placed on the floor of the cell due to prison
overcrowding.
3
In a “declaration” filed in July 2015, Lomax elaborated on these allegations, stating that
he was in custody at CFCF from December 15, 2012, to May 14, 2013, and that he was:
subject to some of the worst conditions ever from three (3) men sharing one (1)
toilet to having three (3) men in a cell. Being forced to sleep in a makeshift bed
called “Bunk/Boat” . . . in addi[]tion to urine and feces splashed on his bed that
was place[d] on the cement floors. Being subject to rats and other things crawling
on the floors of the Facility.
Lomax Decl., ECF No. 16.
2

placed his case in administrative suspense “pending disposition of the prison overcrowding civil
actions filed prior to and on June 20, 2011,” and ordered that no summonses were to issue at that
time. ECF No. 4.
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. 4 ECF Nos. 22-23. Lomax did not file an
amended complaint. In March 2016, the Court granted Corizon’s motion to take Lomax’s
deposition. See ECF Nos. 28, 30.
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 . .

4

Lomax had filed a pro se motion to amend his complaint in December 2014. ECF No. 11.
3

. 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.
B.

Factual Background
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. 5
Lomax Dep. 21:17-22:1. He does not, however, take any medication for his continuing back and
leg pain. Lomax Dep. 43:17-19.

5

At the time of his deposition in March 2016, Lomax was incarcerated at SCI Benner.
Lomax Dep. 13:20.
4

Lomax testified that he submitted approximately two sick call slips while at CFCF, 6 each
of which concerned the pain that he was experiencing. Lomax Dep. 24:10-20. He testified that
each time he was seen by a nurse who told him that he “was a big boy and [could] deal with the
pain and to return to [his] housing unit.” Lomax Dep. 15:13-18.
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. 7
III.

Standard of Review
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).

6

Lomax explained that inmates can obtain sick call slips from corrections officers; after
submitting a slip, “[m]aybe three, four, sometimes five days later, they’ll call you down to
address your sick calls.” Lomax Dep. 24:3-9.
7
The medical records also include documentation concerning Lomax’s treatment
following a tooth extraction in March 2013.
5

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).
IV.

Summary judgment is granted to Corizon and Dr. Davis.

A.

Corizon
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

6

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). 8 Accordingly, because Lomax has failed to raise a genuine issue of material fact as to
whether Corizon has a custom or policy exhibiting deliberate indifference to a prisoner’s serious
medical needs, Corizon is entitled to summary judgment on Lomax’s claims.
B.

Dr. Davis
Corizon contends that the undisputed facts show that Dr. Davis should also be dismissed

from this case. 9 Specifically, Corizon points to Lomax’s testimony that he is suing Dr. Davis
because he is the head of Corizon and “should have better people to provide care for the inmates
at CFCF,” Lomax Dep. 16:20-17:1, and Lomax’s acknowledgment that he did not receive any
medical treatment from Dr. Davis or see him for any medical appointments, Lomax Dep. 17:2-7.
“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
8

As noted above, Lomax’s Complaint alleges that “[o]ther inmates . . . have developed
similar body pains, aches, injuries, etc.,” but the Complaint does not allege that other inmates
received inadequate treatment from Corizon, nor is there evidence in the record to show this.
9
Dr. Davis has not entered an appearance in this case and is a nonmovant with respect to
Corizon’s motion. Under Federal Rule of Civil Procedure 56(f), the court may grant summary
judgment for a nonmovant “[a]fter giving notice and a reasonable time to respond.” Here, Lomax
had sufficient notice that his claims against Dr. Davis could be considered in connection with
Corizon’s motion, as Corizon stated in its brief that it sought dismissal of Lomax’s claims
against Dr. Davis. In addition, Lomax addressed the merits of his claims against Dr. Davis in his
own motion for summary judgment.
7

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.
V.

Lomax’s claims against the remaining defendants are dismissed without prejudice. 10
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.
10

It appears that summonses were never issued in this case, and these remaining
Defendants have not been served, nor have they entered an appearance in this case. The Court
will screen Lomax’s claims against these Defendants pursuant to the Prison Litigation Reform
Act, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996), which authorizes a district court to
dismiss an action brought by a prisoner under 28 U.S.C. § 1915 if the complaint is frivolous,
malicious, or fails to state a claim upon which relief may be granted. “The legal standard for
dismissing a complaint for failure to state a claim under § 1915(e)(2)(B)(ii) is the same as that
for dismissing a complaint pursuant to a motion filed under Rule 12(b)(6) of the Federal Rules of
Civil Procedure.” Credico v. Guthrie, 570 F. App’x 169, 170 (3d Cir. 2014). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court “must accept the truth of all
factual allegations in the complaint and must draw all reasonable inferences in favor of the nonmovant.” Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010).
8

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.
A.

Lomax’s claims against the City of Philadelphia are dismissed without prejudice.
“[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.
B.

Lomax’s claims against Mayor Nutter are dismissed without prejudice.
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

9

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:
(1) identify the specific supervisory practice or procedure that the supervisor
failed to employ, and show that (2) the existing custom and practice without the
identified, absent custom or procedure created an unreasonable risk of the
ultimate injury, (3) the supervisor was aware that this unreasonable risk existed,
(4) the supervisor was indifferent to the risk; and (5) the underling’s violation
resulted from the supervisor’s failure to employ that supervisory practice or
procedure.
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.
C.

CFCF Mental Health Department
Lomax’s Complaint does not include any allegations specifically concerning the CFCF

Mental Health Department. 11 Consequently, his claims against the CFCF Mental Health

11

At his deposition, Lomax testified that he is suing the CFCF Mental Health Department
because he suffered mental anguish as a result of not having his physical complaints addressed.
Lomax Dep. 17:13-20. But Lomax acknowledged that he was not seen by any members of the
10

Department are dismissed. The Court is unable to determine whether an amendment would be
futile, so the dismissal is without prejudice, and Lomax is granted leave to amend his claims
against this entity.
VI.

Conclusion
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.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.___________
JOSEPH F. LEESON, JR.
United States District Judge

mental health staff while he was at CFCF, Lomax Dep. 17:21-24, and so the basis of Lomax’s
claims against this entity is unclear.
11