The opinion of the court was delivered by: Wolfson, District Judge
Presently before the Court are two motions for Summary Judgment on the Complaint of Plaintiff, pro se, James Hemphill ("Hemphill"). In his Complaint, Hemphill, a former inmate at Ocean County Jail, alleged that the Ocean County Department of Corrections ("OCDOC") (1) failed to protect him from physical violence when he was attacked by fellow inmates; and (2) denied him medical treatment and proper medication following the attack violation of 42 U.S.C. § 1983. Pl.'s Compl. at §§ 4 & 6. At the close of discovery, Defendant OCDOC and Third Party Defendant Prison Health Services, Inc. ("PHS") filed individual motions for Summary Judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, Defendants' motions are granted.
After being extradited from Scotland, Plaintiff was confined at the Ocean County Jail from September 3, 2004 to April 11, 2005. See Pl.'s Opp. Br. at 2, 16; Hemphill Dep. 68-70. During his incarceration, Defendant OCDOC and the officers on duty at Ocean County Jail were primarily responsible for Plaintiff's general care and well-being. See generally Pl.'s Opp. Br. Defendant PHS, a private provider of managed correctional healthcare for jails, prisons, and juvenile facilities, administered medical care at Ocean County Jail pursuant to a contract with Ocean County, New Jersey. PHS Summary Judgment Brief ("PHS SJ Br.") at 5.
On the evening of January 12, 2005, Plaintiff's cell mate, Michael Arsenault ("Arsenault") was attacked by two inmates attempting to steal his commissary. Hemphill Dep. at 80:14 - 81:11. After fending off the attack, Arsenault summoned two on-duty OCDOC officers and requested that he be transferred to a different area of the prison for fear that the attackers would return. Id. 81:11-20. Arsenault was transferred, however, when Plaintiff asked the officers if he could also be moved in the interest of his own personal safety, his request was denied. Id. at 81:21 - 82: 2. Id. Immediately after Arsenault was removed from the cell, the two inmates returned, assaulted and badly beat Plaintiff. Id. at 76:19-79:2; 88:2-13; Pl.'s Opp. Br. at 8. As a result of the attack, Plaintiff sustained injuries to the side of his head, left eye, right arm, and suffered a chipped tooth. Hemphill Dep. at 11:23 - 12:3; 12:15-18. Moreover, Plaintiff contends that the attack caused him to suffer permanent injuries including nightmares and a sore right shoulder. Id. 88:14 - 89:13.
Immediately following the assault, Plaintiff explained to Sgt. Thompson, the sergeant on duty, that he had been attacked. Pl's Opp. Br. at 9. Thompson instructed Plaintiff to go to the jail's medical facility to have his injuries cared for. Id. Plaintiff walked to the medical unit where a nurse assessed the extent of his injuries and administered ice and Motrin for his head pain. Hemphill Dep. 28:16 - 29:7. After returning from the medical unit, Plaintiff was transferred to another dorm. Pl's Opp. Br. at 10.
Subsequently, Plaintiff received the following care from prison medical staff and from specialists outside the prison. On January 13, 2005, the day following the incident, Plaintiff saw a prison doctor who prescribed him eye drops for his eye injury. Hemphill Dep. 29:8-14. On January 18, Plaintiff was seen by a nurse in the medical unit because the redness in his eye had not abated. Id. 29:15-24. Two days later, on January 20, 2005, Plaintiff saw a prison doctor after complaining of blurry vision. Id. 29:25- 30:4. Thereafter, on January 22, 2005, Plaintiff requested an appointment with an eye specialist for his injury, Pl.'s Opp. Br., Ex. E, and on February 2, 2005, Plaintiff saw David R. Grossman, M.D. ("Dr. Grossman"), an opthamologist at the Ocean Eye Institute in Toms River, NJ. Siegrest Cert, Ex. D (under seal); Hemphill Dep. 34:6-16. Dr. Grossman diagnosed Plaintiff with a subconjunctival hemorrhage and prescribed steroidal eye drops to treat the injury. Hemphill Dep. 34:6-23. Dr. Grossman also requested that Plaintiff return for a follow-up appointment in one month; on March 9, 2005, Plaintiff returned to Dr. Grossman for his follow-up visit at which time Dr. Grossman again prescribed eye drops to treat Plaintiff's injuries. Siegrest Cert, Ex. D (under seal); Hemphill Dep. 34:14-25.
On April 8, 2005, Plaintiff filed a Complaint against the OCDOC alleging violations of his Eighth Amendment rights pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff alleged that the OCDOC (1) failed to protect him from physical violence and (2) that he was denied proper medical attention. On February 24, 2006, the OCDOC filed a Third Party Complaint against PHS. On March 15, 2006, PHS filed a Motion for Summary Judgment. On March 30, 2006, OCDOC filed a Motion for Summary Judgment. On May 31, 2006, Plaintiff filed a Motion for Leave to File an Amended Complaint which was denied by the Honorable Judge John J. Hughes on June 21, 2006 explaining that "Plaintiff['s] waiting until the end of discovery after dispositive motions have been filed to seek to Amend the Complaint constitutes undue delay . . . ." Id. Nevertheless, on June 16, 2006, Plaintiff submitted an Amended Complaint and Opposition to Defendants' Summary Judgment Motions.*fn1
Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1946). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. The burden of establishing that no "genuine issue" exists is on the party moving for summary judgment. Celotex, 477 U.S. at 330. Once the moving party satisfies this initial burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). To do so, the non-moving party must "do more than simply show that there is some metaphysical doubt as to material facts." Matshushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A. Plaintiff's § 1983 Claim Against OCDOC
In the instant matter, Plaintiff contends that Defendant OCDOC violated his Eighth Amendment guarantee to be free from cruel and unusual punishment.*fn2 Specifically, Plaintiff alleges that prison officials failed to protect him from an attack by fellow prisoners and that he was denied proper medical attention following the attack. Section 1983 provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory. . .subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..." 42 U.S.C. § 1983. Section 1983 does not create substantive rights, but "merely provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws." Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d Cir. 2003) (citing Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.1994).
Moreover, local government units are not liable under § 1983 solely on a theory of respondeat superior. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91, 694 (1978) (municipal liability attaches only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury" complained of); Natale v. Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d Cir.2003). Thus, in order for a governmental entity to be liable for the violation of a constitutional right under § 1983, the plaintiff must identify a policy or custom of the entity that caused the constitutional violation. Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (199). Indeed, "a defendant in a civil rights action must have personal involvement in the alleged wrongs, liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of ...