United States District Court, E.D. Pennsylvania
prisoner alleging a city's prison medical personnel
breached a duty of medical care or violated his
constitutional right to be free from cruel and unusual
punishment must allege how each named individual personally
harmed him. When, as here, the counseled prisoner sues the
city's Chief of Medical Operations without alleging a
single fact of his involvement, knowledge or acquiescence, we
must dismiss the prisoner's medical negligence and
constitutional claims against the city's supervisor of
incarcerated at the Philadelphia Industrial Correctional
Center. Mr. 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
An unnamed nurse diagnosed Mr. Diaz with an abscess in his
right leg. She prescribed Motrin to relieve 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, a doctor examined Mr. Diaz and referred him to
the emergency department of a nearby hospital. In the hospital,
doctors made an incision and 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 continued pain in his
right leg and difficulty walking. Mr. Diaz also requires
medication and physical therapy to treat his
Diaz alleges Bruce Herdman is the Chief of Medical Operations
of the Philadelphia Prison System and employed by the City of
Philadelphia. Mr. Diaz alleges Mr. Herdman acted
jointly and in concert with the other medical personnel and
corrections officers but does not allege Mr. Herdman's
personal actions. We only know his job title and employer. We
have no idea what role, if any, Mr. Herdman may have played
in the alleged medical error or cruel and unusual punishment.
Mr. Diaz does not allege Mr. Herdman is a medical doctor or
otherwise provided medical services.
Diaz sues Mr. Herdman in his official and individual
capacities but does not name him in a specific
count. Mr. Herdman presumes Mr. Diaz brings
both an Eighth Amendment cruel and unusual punishment claim
and medical negligence claim against him.
Herdman moves to dismiss Mr. Diaz's Eighth Amendment
civil rights claim because Mr. Diaz fails to allege Mr.
Herdman's personal involvement in this alleged
constitutional harm. Mr. Herdman also moves to dismiss Mr.
Diaz's medical negligence claim because Mr. Herdman is
immune to medical negligence claims as an employee of the
City of Philadelphia.
Mr. Diaz fails to plead a § 1983 claim against Mr.
plead a § 1983 claim against Mr. Herdman for violating
his Eighth Amendment rights, Mr. Diaz must allege facts
showing Mr. Herdman's personal involvement in the
constitutional violation. Our court of appeals instructs
"[p]ersonal involvement can be shown through allegations
of personal direction or of actual knowledge and
Diaz alleges Mr. Herdman acted under the color of state law
as an employee of the City of Philadelphia and he "acted
jointly and in concert" with the other unnamed
corrections officers and a nurse to harm Mr.
Diaz. Mr. Diaz does not allege Mr. Herdman
failed to treat his medical needs or he knew of the other
medical personnel's failure to treat his medical needs
and did not intervene. Mr. Diaz does not allege Mr.
Herdman's personal involvement, knowledge or acquiescence
in the alleged harm.
dismiss Mr. Diaz's Eighth Amendment claim because Mr.
Diaz fails to allege Mr. Herdman's involvement in
violating his constitutional rights.
Mr. Diaz fails to plead a medical negligence claim ...