United States District Court, E.D. Pennsylvania
OPINION DEFENDANT CORIZON, INC.'S MOTION FOR
SUMMARY JUDGMENT, ECF NO. 33: GRANTED PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT, ECF NO. 40: DENIED
F. LEESON, JR. United States District Judge
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.,  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 Dr. Davis are entitled to judgment as a
matter of law, Corizon's motion is granted and
Lomax's motion is denied.
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.
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, ” 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. 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, 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.
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.
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. 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.
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.
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.
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 Dep. 21:17-22:1. He does not,
however, take any medication for his continuing back and leg
pain. Lomax Dep. 43:17-19.
testified that he submitted approximately two sick call slips
while at CFCF,  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.
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.