2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-13-2013

Eddie Almodovar v. City of Philadelphia

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1679

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2013

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2013 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Eddie Almodovar v. City of Philadelphia" (2013). 2013 Decisions. Paper 685.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/685
BLD-247 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1679

___________

EDDIE ALMODOVAR,

 Appellant

v.

CITY OF PHILADELPHIA; C.O.HARRIS

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2:11-cv-01781)

District Judge: Honorable William H. Yohn, Junior

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 16, 2013

Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: June 13, 2013)

_________

OPINION

_________

PER CURIAM

Pro Se Appellant Eddie S. Almodovar, appeals from an order of the United States 

District Court for the Eastern District of Pennsylvania granting Appellee City of 

Philadelphia‟s motion for summary judgment concerning the civil rights complaint he 
2

filed pursuant to 42 U.S.C. § 1983. Because this appeal does not present a substantial 

question, we will summarily affirm. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

I.

Because we write primarily for the parties, we need only recite the facts necessary 

for our discussion. On March 11, 2011, Almodovar filed a civil rights complaint against 

the Philadelphia prison system and Correctional Officer Harris. According to 

Almodovar, on May 16, 2009, while he was housed at Philadelphia Industrial 

Correctional Center (“PICC”), two inmates approached and threatened him during the 

first guard shift. After the guard shift changed, Almodovar was attacked by two inmates, 

one of whom had a knife. Almodovar was stabbed multiple times. After the fight was 

broken up, he was taken to Frankfort Hospital and received stitches. Almodovar alleged

that Harris facilitated the attack against him and that the prison system‟s lack of training, 

oversight, and rules allowed his assailants to obtain the knife used in the attack. 

In January 2012, the City of Philadelphia was substituted as a defendant for the 

Philadelphia prison system and in June 2012, Correctional Officer Harris was dismissed 

for failure to serve. On January 8, 2013, the City of Philadelphia, the only remaining 

defendant, filed a motion for summary judgment. The District Court granted Almodovar 

an extension of time to respond to the motion until February 20. 2013.1 After Almodovar

 

1 Under the Eastern District Local Rules of Civil Procedure Rule 7.1(c), Almodovar had 

fourteen days to response to the summary judgment motion.
3

failed to do so, the District Court granted the summary judgment motion by order entered 

February 27, 2013.

2

 Almodovar filed a timely appeal. 

II.

We have jurisdiction under 28 U.S.C. § 1291. We review a district court‟s 

dismissal for failure to prosecute for abuse of discretion, acknowledging that dismissal 

“is only appropriate in limited circumstances and doubts should be resolved in favor of 

reaching a decision on the merits.” Liggon-Redding v. Estate of Sugarman, 659 F.3d 

258, 260 n.1 (3d Cir. 2011) (citations omitted). We review the District Court's denial of 

the request for appointment of counsel and leave to amend a complaint for abuse of 

discretion. See Tabron v. Grace, 6 F.3d 147, 155 n. 3, 158 (3d Cir.1993); Renchenski v. 

Williams, 622 F.3d 315, 324–25 (3d Cir.2010). We exercise plenary review over the 

District Court‟s grant of summary judgment. Howley v. Mellon Fin. Corp., 625 F.3d 

788, 792 (3d Cir. 2010). In considering the record, we “apply[] the same standard that 

the court should have applied.” Id. Summary judgment is only proper where no genuine 

issue exists as to any material fact and the movant is entitled to judgment as a matter of 

 

2

The District Court also denied Almodovar‟s motion to add additional defendants as 

untimely. A motion for appointment of counsel, which Almovodar filed on February 8, 

2013, was also before the Court. On May 24, 2011, the District Court granted 

Almodovar‟s request for appointment of counsel and requested that counsel from the 

Prisoner Civil Rights Panel accept appointment. On August 31, 2011, the District Court 

advised Almodovar that it was unable to obtain a volunteer attorney. Thus, the District 

Court dismissed Almodovar‟s motion for appointment of counsel as duplicative in its 

February 26, 2013 order. Additionally, the District Court dismissed Almodovar‟s request 

for additional time to respond to the motion for summary judgment until counsel has been 

appointed.
4

law. Fed. R. Civ. P. 56(a). We may summarily affirm on any basis supported by the 

record if the appeal does not present a substantial question. Murray v. Bledsoe, 650 F.3d 

246, 247 (3d Cir. 2011) (per curiam).

III.

The District Court granted the City of Philadelphia‟s motion for summary 

judgment for lack of prosecution, not on the merits. Thus, our decision in Poulis v. State 

Farm Fire and Casualty Company, 747 F.2d 863 (3d Cir. 1984), applies and the District 

Court should have engaged in a balancing test of the six factors outlined in that case to 

decide whether to dismiss the case as a sanction. See Poulis, 747 F.2d at 868. 

Nonetheless, we conclude that remanding this matter to the District Court for 

consideration of the Poulis factors would be futile because Almodovar does not have a 

valid cause of action against the City of Philadelphia.

Plaintiffs who seek to impose liability on local governments under § 1983 must 

prove that “„action pursuant to official municipal policy‟ caused their injury.” Connick v. 

Thompson, 131 S. Ct. 1350, 1359 (2011) (quoting Monell v. Department of Social 

Services, 436 U.S. 658, 691 (1978)). “Only where a municipality‟s failure to train its 

employees in a relevant respect evidences a „deliberate indifference‟ to the rights of its 

inhabitants can such a shortcoming be properly thought of as a city „policy or custom‟ 

that is actionable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389 (1989); see

Woloszyn v. County of Lawrence, 396 F.3d 314, 324 (3d Cir. 2005). Here, Almodovar‟s 

complaint includes nothing more than a conclusory allegation that “lack of training, 
5

oversight and rules” resulted in his assailants getting access to the knife used in the attack 

against him. Indeed, Almodovar admitted in his deposition that the prison system does 

not permit corrections officers to deliver weapons to prisoners, and he does know of any 

grievance or complaint filed by other prisoners complaining of this behavior. 

Almodovar‟s incident is the only incident on the record allegedly resulting from the 

Defendant‟s policy. However, the Supreme Court has held that a single incident of 

unconstitutional activity is not sufficient to impose liability under Monell “unless proof 

of the incident includes proof that it was caused by an existing, unconstitutional 

municipal policy, which policy can be attributed to a municipal policymaker.” Oklahoma 

City v. Tuttle, 471 U.S. 808, 24 (1985). There is no such proof here. Thus, Almodovar‟s 

claim against the City of Philadelphia fails.

IV.

For the foregoing reasons, no substantial question is presented and we will 

summarily affirm the judgment of the District Court.

3

 

 

3 We agree with the District Court‟s denial of Almodovar‟s motion to add additional 

defendants as untimely, the denial of his motion for appointment of counsel as 

duplicative, and the denial of his motion for additional time to respond to the motion for 

summary judgment until counsel has been appointed as moot.