Kohr v. Rivello

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWIN KOHR, No. 4:24-CV-01336

Plaintiff, (Chief Judge Brann)

v.

SUPERINTENDENT RIVELLO, et

al.,

Defendants.

MEMORANDUM OPINION

OCTOBER 8, 2024

Plaintiff Edwin Kohr filed the instant pro se civil rights lawsuit alleging

Eighth Amendment violations by prison officials at SCI Huntingdon. His Section

19831 claims sound in deliberate indifference to serious medical needs. Because

Kohr fails to state a claim for relief, the Court will dismiss his complaint pursuant

to 28 U.S.C. § 1915A(b)(1) but will grant him leave to amend.

I. STANDARDS OF REVIEW

Courts are statutorily obligated to review, “as soon as practicable,” pro se

prisoner complaints targeting governmental entities, officers, or employees.2 One

basis for dismissal at the screening stage is if the complaint “fails to state a claim

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of substantive rights; it serves

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.

v. Doe, 536 U.S. 273, 284-85 (2002).

upon which relief may be granted[.]”3 This language closely tracks Federal Rule

of Civil Procedure 12(b)(6). Accordingly, courts apply the same standard to

screening a pro se prisoner complaint for sufficiency under Section 1915A(b)(1) as

they utilize when resolving a motion to dismiss under Rule 12(b)(6).4

In deciding a Rule 12(b)(6) motion to dismiss, courts should not inquire

“whether a plaintiff will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims.”5 The court must accept as true the factual

allegations in the complaint and draw all reasonable inferences from them in the

light most favorable to the plaintiff.6 In addition to the facts alleged on the face of

the complaint, the court may also consider “exhibits attached to the complaint,

matters of public record, as well as undisputedly authentic documents” attached to

a defendant’s motion to dismiss if the plaintiff’s claims are based upon these

documents.7

When the sufficiency of a complaint is challenged, the court must conduct a

three-step inquiry.8 At step one, the court must “tak[e] note of the elements [the]

3 Id. § 1915A(b)(1).

4 See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002); O’Brien

v. U.S. Fed. Gov’t, 763 F. App’x 157, 159 & n.5 (3d Cir. 2019) (per curiam) (nonprecedential);

cf. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

5 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.

1996).

6 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

7 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

8 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotation marks omitted) (footnote omitted).

plaintiff must plead to state a claim.”9 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal

conclusions, which “are not entitled to the assumption of truth” and may be

disregarded.10 Finally, the court must review the presumed-truthful allegations

“and then determine whether they plausibly give rise to an entitlement to relief.”11

Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”12

Because Kohr proceeds pro se, his pleadings are to be liberally construed

and his complaint, “however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers[.]”13 This is particularly true

when the pro se litigant, like Kohr, is incarcerated.14

II. DISCUSSION

The gravamen of Kohr’s complaint is alleged deliberate indifference to

serious medical needs in violation of the Eighth Amendment. Kohr first alleges

that, in September 2022, he began having “issues” with his stomach and upper

chest.15 He was promptly sent to the medical department and the medical

department immediately transferred him to J.C. Blair Hospital, which then

9 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).

10 Id. (quoting Iqbal, 556 U.S. at 679).

11 Id. (quoting Iqbal, 556 U.S. at 679).

12 Iqbal, 556 U.S. at 681.

13 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations omitted).

14 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).

15 Doc. 1 ¶ 8.

transferred him to Altoona Hospital.16 At Altoona Hospital, Kohr underwent

emergency surgery to repair an aneurysm.17 He spent two weeks in Altoona

Hospital, then another month in SCI Smithfield, and was then transferred back to

SCI Huntingdon.18

Upon return to SCI Huntingdon, Kohr eventually went back to work at his

prison job because it was “the only source of income” for him.19 One month after

returning to work, Kohr developed two large hernias related to his prior surgery.20

He recounts that he was sent back to SCI Smithfield, which facility then

transferred him to Altoona Hospital, where he remained for approximately two

months.21 He then returned to SCI Huntingdon.22

Kohr alleges that, at some point, he was scheduled for surgery to correct the

hernias.23 That hernia surgery was canceled, however, because the surgeon who

was to perform the surgery had to undergo “unexpected emergency” surgery

himself.24 Although Kohr’s complaint is not entirely clear, he appears to contend

that he experienced difficulty and delay in getting this hernia surgery rescheduled.

16 Id. ¶¶ 9-10.

17 Id. ¶ 10.

18 Id. ¶ 11.

19 Id. ¶ 12.

20 Id. ¶ 13.

21 Id.

22 Id.

23 Id. ¶ 14.

24 Id. ¶ 15; Doc. 1-2 at 3.

However, the Court is unable to discern from Kohr’s complaint and attachments

when, if ever, he was rescheduled for hernia surgery.

In December 2023, Kohr filed a grievance about the issue.25 That grievance

was denied, and he appealed the denial to the Facility Manager, who likewise

denied the first-level appeal.26 Kohr’s final appeal to the Secretary’s Office of

Inmate Grievances and Appeals (SOIGA) was dismissed—rather than addressed

on the merits—for failure to comply with the SOIGA’s filing requirements.27

Kohr filed his complaint in this Court in August 2024.28 He sues two

defendants: Superintendent Rivello and Wellpath Medical.29 Upon review of

Kohr’s complaint, he plainly fails to state a claim upon which relief may be

granted. The Court will address his pleading deficiencies in turn.

A. Personal Involvement

It is well established that, in Section 1983 actions, liability cannot be

“predicated solely on the operation of respondeat superior.”30 Rather, a Section

1983 plaintiff must aver facts that demonstrate “the defendants’ personal

involvement in the alleged misconduct.”31 Personal involvement can include direct

25 See Doc. 1 ¶ 16; Doc. 1-2 at 3 (Initial Review Response, dated January 4, 2024).

26 See Doc. 1-2 at 2-4.

27 See id. at 5.

28 See generally Doc. 1.

29 Id. ¶¶ 4-5.

30 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted); see also Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009) (affirming same principle in Bivens context).

31 Dooley, 957 F.3d at 374 (citing Rode, 845 F.2d at 1207).

wrongful conduct by a defendant, but it can also be demonstrated through

allegations of “personal direction” or of “actual knowledge and acquiescence”;

however, such averments must be made with particularity.32 Furthermore, it is

equally settled that involvement in the post-incident grievance process alone does

not give rise to Section 1983 liability.33

Kohr’s primary pleading deficiency is his failure to allege personal

involvement for any Defendant. Although he names a specific prison official—

Superintendent Rivello—he does not include any allegations of wrongdoing that

would establish personal involvement by Rivello in the purported constitutional

violation.

Although the Court is able to glean from Kohr’s attachments that Rivello

was involved in the first-level grievance appeal, involvement in the post-incident

grievance process alone does not create a basis for Section 1983 liability.

Furthermore, from the grievance materials Kohr submitted, it appears that his

primary complaint was that his hernia surgery had been canceled.34 But as both the

Facility Grievance Coordinator and Rivello (the Facility Manager) explained, that

32 Id. (quoting Rode, 845 F.2d at 1207).

33 See id. at 374 (affirming dismissal of claims against prison officials for lack of personal

involvement when officials’ “only involvement” was “their review and denial of [plaintiff]’s

grievance”); Lewis v. Wetzel, 153 F. Supp. 3d 678, 696-97 (M.D. Pa. 2015) (collecting cases);

Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006) (nonprecedential); Alexander v.

Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005) (nonprecedential) (explaining that prisoner’s

claims against certain defendants were “properly dismissed” because the allegations against

them “merely assert their involvement in the post-incident grievance process”).

34 See Doc. 1-2 at 1-4.

cancelation was outside of the prison’s control because the surgeon had to undergo

emergency surgery himself.35

To plausibly plead a Section 1983 claim, Kohr must specify each

Defendant’s personal involvement in the alleged constitutional misconduct in order

to state a claim for relief. Accordingly, the Court must dismiss the Section 1983

claim against Rivello under 28 U.S.C. § 1915A(b)(1) for lack of personal

involvement.

B. “Person” for Section 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “the

violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under

color of state law.”36 Only “persons” are subject to suit under Section 1983, and

entities such as prisons, medical departments, or private medical companies

generally do not qualify as “persons” for purposes of Section 1983.37

35 Id. at 3, 4.

36 Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (emphasis added) (citing Imbler v. Pachtman, 424

U.S. 409, 417 (1976) (citing 42 U.S.C. § 1983)).

37 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-65, 71 (1989); Slagle v. County of

Clarion, 435 F.3d 262, 264 n.3 (3d Cir. 2006) (affirming on other grounds and observing that

district court properly “dismissed Clarion County Jail as a defendant in this case,” quoting

district court’s reasoning that “‘it is well established in the Third Circuit that a prison is not a

“person” subject to suit under federal civil rights laws’”); Stankowski v. Farley, 487 F. Supp.

2d 543, 554 (M.D. Pa. 2007) (finding that PrimeCare is not a “person for purposes of Section

1983” and thus not subject to liability under that statute); see also Fischer v. Cahill, 474 F.2d

991, 992 (3d Cir. 1973) (holding that “New Jersey Prison Medical Department” was a state

agency and not a “person” under Section 1983).

Under this well-settled law, any Section 1983 claim against defendant

“Wellpath Medical” must be dismissed, as Wellpath is not a person subject to

Section 1983 liability. Moreover, Kohr does not allege an unconstitutional policy

or custom by Wellpath such that a Section 1983 suit could be maintained against it

through its connection with the government.38 Wellpath, therefore, must be

dismissed under Section 1915A(b)(1) as well.

C. Eighth Amendment Medical Indifference

In the context of prison medical care, the Eighth Amendment “requires

prison officials to provide basic medical treatment to those whom it has

incarcerated.”39 To state an Eighth Amendment deliberate indifference claim

regarding inadequate medical care, a plaintiff must plausibly allege that “(1) he had

a serious medical need, (2) the defendants were deliberately indifferent to that

need; and (3) the deliberate indifference caused harm to the plaintiff.”40 A serious

medical need is “one that has been diagnosed by a physician as requiring treatment

or one that is so obvious that a lay person would easily recognize the necessity for

a doctor’s attention.”41

38 See, e.g., Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003).

39 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

40 Durham v. Kelley, 82 F.4th 217, 229 (3d Cir. 2023) (citation omitted); see also Natale v.

Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).

41 Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).

Deliberate indifference by prison officials may be evidenced by intentional

refusal to provide care known to be medically necessary, delayed provision of

medical treatment for non-medical reasons, denial of prescribed medical treatment,

or denial of reasonable requests for treatment resulting in suffering or risk of

injury.42 Deliberate indifference to serious medical needs is an exacting standard,

requiring a showing of “unnecessary and wanton infliction of pain.”43 Claims

sounding in mere medical negligence will not suffice.44

Assuming that Kohr has stated a serious medical need with respect to his

double hernia, his medical deliberate indifference claim fails at the second and

third elements. That is, he has not plausibly alleged facts that would show that any

particular Defendant acted with deliberate indifference toward his serious medical

needs or that such deliberate indifference caused his harm.

Regarding deliberate indifference, Kohr has not plausibly alleged how

Rivello—the Superintendent of SCI Huntingdon—was deliberately indifferent to

Kohr’s medical needs. First, Rivello is not a medical professional, and it is clear

that Kohr was under the care of multiple medical professionals during the relevant

times in his complaint. Kohr has not plausibly alleged how Rivello could be liable

for deficient medical care when Kohr was being treated by medical professionals at

42 See Durmer v. O’Carroll, 991 F.2d 64, 68 & n.11 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d

at 346).

43 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted).

44 Rouse, 182 F.3d at 197.

SCI Huntingdon and at outside hospitals.45 Further, Rivello’s only involvement

appears to be during the grievance process. Upholding a grievance denial because

the surgeon who was supposed to perform Kohr’s hernia surgery had a medical

emergency of his own does not implicate deliberate indifference in any way.

Kohr’s complaint also fails to adequately plead causation. It is impossible to

determine from his allegations whether any particular Defendant’s conduct caused

his harm (or what that harm was). Kohr appears to be asserting that his hernia

surgery was excessively delayed, but the Court is unable to determine why, how

long, or who was allegedly responsible. Accordingly, Kohr’s Eighth Amendment

medical indifference claims must be dismissed for failure to state a claim pursuant

to 28 U.S.C. § 1915A(b)(1).

D. Official Capacity Claims

Kohr sues Defendants in their individual and official capacities, even though

one Defendant is a business entity.46 Nevertheless, any official capacity claim

seeking monetary damages from state officials is barred by Eleventh Amendment

sovereign immunity.

The Eleventh Amendment to the United States Constitution prevents federal

courts from entertaining lawsuits—by United States citizens or citizens of foreign

45 See Durmer, 991 F.2d at 69 (finding that failure by nonmedical prison officials to respond to

medical complaints from prisoner-plaintiff “already being treated by the prison doctor” does

not establish deliberate indifference).

46 See Doc. 1 at p. 1; id. ¶ 35.

states—brought against a state.47 This immunity from private suit extends to state

agencies as well as state officials acting in their official capacity, because such

lawsuits are essentially civil actions “against the State itself.”48 States may waive

this immunity if they choose, but Pennsylvania has explicitly not waived its

immunity with respect to claims brought under Section 1983.49 There are two

exceptions to the Eleventh Amendment’s bar to private suits against nonconsenting

states: (1) “Congress may abrogate a state’s immunity” and (2) “parties may sue

state officers for prospective injunctive and declaratory relief.”50

Kohr seeks compensatory and punitive damages, as well as costs.51 To the

extent those monetary damages are sought against state officials in their official

capacities, such claims are barred by Eleventh Amendment sovereign immunity.

Kohr also seeks declaratory relief in the form of a declaration that his civil rights

were violated,52 but this is retrospective, rather than prospective, relief. Moreover,

because Kohr has failed to plausibly allege a constitutional violation against any

Defendant, no official capacity claim survives Section 1915A(a) scrutiny.

47 U.S. CONST. amend. XI; Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997);

Hans v. Louisiana, 134 U.S. 1, 10 (1890).

48 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

49 See 42 PA. CONS. STAT. § 8521(b); Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 310 (3d Cir.

2020); Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 & n.5 (3d Cir. 2010) (citing 42

PA. CONS. STAT. § 8521(b)).

50 Wheeling & Lake Erie Ry. Co. v. Pub. Util. Comm’n of Pa., 141 F.3d 88, 91 (3d Cir. 1998)

(emphasis added) (citing, inter alia, Ex parte Young, 209 U.S. 123 (1908)).

51 Doc. 1 ¶¶ 35, 43.

52 Id.

E. Leave to Amend

Generally, “plaintiffs who file complaints subject to dismissal under [the

Prison Litigation Reform Act of 1995] should receive leave to amend unless

amendment would be inequitable or futile.”53 Kohr will be granted leave to amend

in the event that he can plead facts that would plausibly state a Section 1983 claim

for deliberate indifference to serious medical needs. In particular, Kohr may be

able to state a claim for relief with regard to excessive delay in receiving hernia

surgery, as long as he can plausibly plead the elements of such a claim as set forth

above.

If Kohr chooses to file an amended complaint in conformity with this

Memorandum, it should be a stand-alone document, complete in itself and without

reference to any previous pleadings. The amended complaint should set forth his

Eighth Amendment medical indifference claim in short, concise, and plain

statements, and in sequentially numbered paragraphs. Kohr must leave one-inch

margins on all four sides of his pleading.54 He must also name proper defendants

and specify the offending actions taken by a particular defendant. This step is

particularly critical for Kohr, as his initial complaint is devoid of allegations that

demonstrate any Defendant’s personal involvement in the purportedly deficient

53 Grayson, 293 F.3d at 114.

54 See LOCAL RULE OF COURT 5.1.

medical care. Kohr must also sign the amended complaint and indicate the nature

of the relief sought.

If Kohr does not timely file an amended complaint, dismissal of his Section

1983 claims without prejudice will automatically convert to dismissal with

prejudice and the Court will close this case.

III. CONCLUSION

Based on the foregoing, the Court will dismiss Kohr’s complaint pursuant to

28 U.S.C. § 1915A(b)(1) because he fails to state a claim upon which relief may be

granted. Kohr may file an amended complaint in accordance with this

Memorandum. If no amended complaint is timely filed, dismissal without

prejudice will automatically convert to dismissal with prejudice and the Court will

close this case. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge