United States District Court, E.D. Pennsylvania
suing a city for alleged cruel and unusual punishment by
prison medical supervisors and employees in treating a leg
injury must plead a government policy or custom causing the
lack of medical treatment and his injury. The city is not
liable simply because it employs the medical personnel. When,
as today, the prisoner alleges the city is liable because it
employs the doctors and nurses and does not allege a
government policy or custom causing his injury, we must enter
the accompanying Order granting the city's motion to
incarcerated at the Philadelphia Industrial Correction
Center, Julio Diaz complained to a corrections officer about
"pain, swelling, and inflammation in his right leg"
on January 12, 2016. Mr. Diaz asked the corrections officer to
take him to the infirmary where an unnamed nurse examined
The unnamed nurse diagnosed Mr. Diaz with an abscess in his
right leg. She prescribed Motrin to relieve his pain
and sent him back to his cell.
next six days, Mr. Diaz continued having pain, swelling, and
redness in his right leg. Mr. Diaz complained about his right leg
to numerous corrections officers but no one treated
Mr. Diaz could not stand up on January 17 because of the pain
in his right leg and someone sent him to the
infirmary. No. doctor saw Mr. Diaz on January 17 or
On January 19, 2016, a doctor referred Mr. Diaz to the
emergency department of a nearby hospital. The hospital
doctors drained Mr. Diaz's right leg and treated him with
antibiotics and pain medication. The doctors diagnosed Mr.
Diaz with "right lower extremity abscesses, cellulitis,
swelling and erythema." After four days, the hospital
discharged Mr. Diaz and, since then, Mr. Diaz has continuing
pain in his right leg and difficulty walking. Mr. Diaz also
requires medication and physical therapy to treat his
Diaz sued the City of Philadelphia, John Doe Correction
Officers 1-2, Corizon Health, Inc., and John Does Medical
Personnel 1-2 alleging they each violated his Eighth
Amendment right to be free from cruel and unusual punishment
by being deliberately indifferent to his medical needs. Mr.
Diaz also sues the John Doe medical personnel for state law
medical negligence claims. Mr. Diaz names Bruce Herdman,
Chief of Medical Operations of the Philadelphia Prison
System, as a defendant but does not name him in a specific
City moves to dismiss Mr. Diaz's Eighth Amendment cruel
and unusual punishment claim against it because Mr. Diaz
fails to allege municipal liability under 42 U.S.C. §
1983.The City cannot be held viciously liable
for the acts of its agents because "there is no
respondeat superior theory of municipal
liability." Instead, to allege a § 1983
Monell claim against the City, Mr. Diaz must
identify a policy or custom because "municipal liability
attaches only when 'execution of a government policy or
custom ... inflicts the injury.' "
Diaz fails to identify a policy or custom of the City causing
the correction officers or nurses to allegedly fail to treat
Mr. Diaz's right leg. Mr. Diaz's only alleges
acts of individual persons employed by the City, which is the
prohibited "respondeat superior theory of municipal
grant the City of Philadelphia's motion to dismiss Mr.
Diaz's Eighth Amendment claim against it in the
accompanying Order because Mr. Diaz fails to allege injury
caused by a City policy or custom.
ECF Doc. No. 1, ¶14, 15.