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Johnson v. City of Philadelphia

United States District Court, E.D. Pennsylvania

March 27, 2018

MELVIN DAVIS JOHNSON, Plaintiff,
v.
CITY OF PHILADELPHIA, et al, Defendants.

          MEMORANDUM OPINION

          Schmehl, J.

         I. INTRODUCTION

         On January 8, 2016, Plaintiff, Melvin Davis Johnson, filed a Complaint against the City of Philadelphia (“City”), Bruce Herdman, Corrections Officers John Doe # 1-10, Corizon Health, Inc., Corizon Doctors John/Jane Does #1-5, Corizon Nurses/Health Care Providers and Corizon Nurses/Health Care Providers John/Jane Does #1-5. Plaintiff has only achieved service in this matter on the City. On July 26, 2016, the City filed a Motion to Dismiss the Complaint, and on February 2, 2017, the Honorable Legrome D. Davis granted the motion in part and denied it in part, dismissing Bruce Herdman from this action in his official capacity. After discovery, the City filed a Motion for Summary Judgment. For the reasons that follow, I will grant the City's Motion for Summary Judgment.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. Proc. 56(c). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is “material” if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

         III. STATEMENT OF FACTS

         On October 12, 2013, Johnson jumped out a two-story window because people were looking for him with a gun. They wanted to get him because he was being accused of another aggravated assault. (Docket No. 29-2, Ex. F, pp.14-15.) He hung out the window and let go, landing on the ground and twisting his ankle. (Id., pp. 15-16.) Plaintiff was arrested on November 1, 2013. (Compl., ¶ 20.) Plaintiff sustained a serious ankle fracture and had to undergo surgery on November 20, 2013. (Id., ¶¶ 20-22, Docket No. 29-2, Ex. D, p. 58.) He had a cast put on his foot that was only supposed to be on for a couple of weeks. (Pl's dep, Docket No. 29-2, Ex. F, pp. 35-36.) Plaintiff was supposed to have a follow up appointment on December 19, 2013, but he couldn't attend the appointment because he had a court date. (Id., Ex. F, p. 38.) Sometime after December 19, 2013, Plaintiff fell in the shower and got his cast wet. (Id., Ex. F, pp. 39-40.) On December 29, 2013, Plaintiff informed the prison that he wanted to be seen by the medical staff because his foot was swelling and his toes were throbbing and he was in pain. (Id., Ex. D, p. 75.) He thought his foot was infected because the cast smelled. (Id., Ex. F, p. 45.)

         On December 31, 2013, Plaintiff was seen by the prison medical department. (Id., Ex. D, p. 170.) On January 12, 2014, Plaintiff filed a sick call slip because his toes were throbbing. (Id., Ex. D, p. 77.) X-rays were ordered, and it was noted that an orthopedic follow up appointment was pending. (Id.) On February 3, 2014, Plaintiff was treated at the prison for an infection and the area was debrided at the right ankle. (Id., Ex. D, p. 119.) On February 6, 2014, Plaintiff was seen at Temple Foot and Ankle Institute and his wound was debrided. Possible surgical intervention was discussed. (Id., Ex. D, p. 89.) On February 10, 2014, Plaintiff had a right ankle reconstruction with left osteocutaneous fibula free flap. (Id., Ex. D, pp. 252, 257.) On February 13, 2014, Plaintiff required an amputation because the flap procedure that was attempted but failed because of very poor blood flow. (Id., Ex. D, pp. 255, 239.)

         The Philadelphia Prison System has a grievance process, which applies to all inmates. (Docket No. 29-2. Exh. A) The grievance procedure requires that all inmates file their grievance within 10 days of a grievable event. (Id.) Deputy Warden Frederick Abello (“Abello”), the Grievance Officer for the prison system, conducted a search for any and all grievances filed by Johnson. All inmates would have submitted all grievances to Abello pursuant to the prison policy. (Docket No. 29-2, Exh. B.) Abello found no evidence that Johnson ever filed a grievance. (See id.) Plaintiff received an inmate handbook when he was in the Philadelphia Prison System. (Docket No. 29-2, Exh. F, p.65.)

         IV. DISCUSSION

         A. UNSERVED DEFENDANTS

         Plaintiff sued Corrections Officers John Doe # 1-10, Corizon Health, Inc., Corizon Doctors John/Jane Does # 1-5, Corizon Nurses/Health Care Providers and Corizon Nurses/Health Care Providers John/Jane Does # 1-5. A review of the dockets in this matter shows that none of these defendants have been properly served.

         Plaintiff's Complaint was filed in this matter on January 8, 2016, and summonses were issued on February 1, 2016. On May 26, 2016, and again on June 27, 2016, Judge Davis ordered Plaintiff to effectuate service of process, warning him that the “Court may dismiss this action under Federal Rule of Civil Procedure 4(m) without further notice” if he failed to do so. On July 11, 2016, Plaintiff filed a proof of service that shows the City of Philadelphia was served on July 5, 2016. (See Docket No. 7.) On July 18, 2016, ...


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