# Kohr v. Rivello

> District Court, M.D. Pennsylvania · October 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10667866

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667866

## How later opinions describe it (automated extraction)

- 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
- holding that “New Jersey Prison Medical Department” was a state agency and not a “person” under Section 1983
- finding that PrimeCare is not a “person for purposes of Section 1983” and thus not subject to liability under that statute

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667866. Public record. Not legal advice.