                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harvey Miguel Robinson, Jr.,                  :
                Appellant                     :
                                              :   No. 1770 C.D. 2017
              v.                              :
                                              :   Submitted: March 23, 2018
Louis S. Folino, and CO1 Gillis,              :
sued in their individual capacities           :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                     FILED: June 8, 2018


              The Appellant, Harvey Miguel Robinson, Jr., appeals, pro se, from the
August 4, 2017 order of the Court of Common Pleas of Greene County (trial court),
which granted the preliminary objections of Louis S. Folino and CO1 James Gillis
(together, Defendants) and dismissed Appellant’s amended complaint.


                              Facts and Procedural History
              Robinson is an inmate currently incarcerated at the State Correctional
Institution (SCI)-Graterford.1 On August 3, 2016, Robinson filed a complaint against
Defendants, later amended on September 23, 2016, seeking declaratory relief and
monetary damages and requesting a jury trial. (Original Record (O.R.) at Item No. 27.)


       1
        By letter dated April 30, 2018, filed on May 4, 2018, Robinson notified the Court that he
had been transferred to SCI-Graterford.
             The amended complaint arose from an incident occurring on January 19,
2014, when Robinson was incarcerated at SCI-Greene. (Am. complaint at ¶9.) On that
date, Gillis, a correctional officer at SCI-Greene, was talking to a jailhouse informer
outside his cell. Gillis, speaking loudly so others could hear him, told the informer that
Robinson had filed two grievances against him and others that related to the
“handicapped cages” in the law library. (Id. at ¶10.) Gillis allegedly said that he would
make sure that he got Robinson back for filing the grievances and that he was going to
try to have Robinson sent to solitary confinement. (Id.) Although he was sleeping at
the time, Robinson was awakened by a neighboring inmate and told what Gillis had
said. (Id. at ¶11.)
             On January 21, 2014, Robinson received a misconduct slip from Gillis,
charging him with threatening an employee and using abusive, obscene language. (Id.
at ¶12.) On January 27, 2014, a hearing examiner ultimately dismissed the misconduct
charge. (Id. at ¶13.) In the weeks that followed, Robinson asserts that Gillis continued
to tell the informer that he intended to have him sent to “the hole” even if he had to
“make up something that will stick next time.” (Id. at ¶15.)
             In his amended complaint, Robinson asserts a First Amendment
retaliation claim against Gillis and two tort claims under the theories of respondeat
superior and vicarious liability against Folino, the former superintendent of SCI-
Greene.
             On October 28, 2016, Defendants jointly filed preliminary objections to
the amended complaint. (O.R. at Item No. 26; Preliminary objections.) Gillis asserted
that the amended complaint failed to state a claim for a First Amendment civil rights
violation under 42 U.S.C. §1983. (Id. at 4-6.) Folino asserted that he was insulated
from liability because the averments of the amended complaint alleged that he acted
intentionally, rather than negligently, and because a public official is not liable for the



                                            2
negligent acts of his subordinates. (Id. at 6-7.) The trial court granted each Defendant’s
preliminary objections by order dated August 4, 2017. (O.R. at Item No. 13.) With
respect to Gillis, the trial court’s order was based solely upon the doctrine of sovereign
immunity and did not address Robinson’s asserted civil rights violation under 42
U.S.C. §1983. The trial court noted “that the conduct of Gillis, as alleged, is conduct
which is intentional in nature” and that sovereign immunity applied because “[a]t all
times alleged in the [amended] [c]omplaint, Gillis was an employee of the
Commonwealth” and “was acting within the scope of his employment.” (Id. at 3.)
              On September 11, 2017, Robinson filed both a request for reconsideration
of the August 4, 2017 order and an appeal with the Superior Court of Pennsylvania.
(O.R. at Item Nos. 11-12). Because the Commonwealth Court has exclusive appellate
jurisdiction over this subject matter, and with no objection from Robinson, the Superior
Court transferred the appeal to this Court.


                                           Discussion
              On appeal,2 Robinson asserts that the trial court abused its discretion
and/or erred by finding, sua sponte, that Gillis was protected by sovereign immunity,
when that issue was not raised by Defendant Gillis in his preliminary objections and
his conduct fell outside the scope of his employment. Defendants concede that they
did not raise the issue of sovereign immunity with respect to Defendant Gillis in their


       2
         When ruling upon preliminary objections, the Court is “required to accept as true the well-
pled averments set forth in the . . . complaint, and all inferences reasonably deducible therefrom.”
Pennsylvania State Lodge, Fraternal Order of Police v. Department of Conservation & Natural
Resources, 909 A.2d 413, 415 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007). Where a
preliminary objection presents a question of law, such as objections related to issues of sovereign
immunity and statutory interpretation, our standard of review is de novo and our scope of review is
plenary. Feldman v. Hoffman, 107 A.3d 821, 826 n.7 (Pa. Cmwlth. 2014); Bender v. Pennsylvania
Insurance Department, 893 A.2d 161, 162 (Pa. Cmwlth. 2006).



                                                 3
preliminary objections; therefore, the count against Defendant Gillis should not have
been dismissed on that basis. (Appellees’ brief at 7.) However, Defendants contend
that this Court should affirm the trial court’s decision because Robinson failed to plead
a cognizable retaliation claim.


                                  Sovereign Immunity
              “The sovereign immunity of the Commonwealth cannot be waived by an
act of its agent. It can only be waived by a [s]pecific enactment of the legislature.”
Hoffner v. James D. Morrissey, Inc., 389 A.2d 702, 703 (Pa. Cmwlth. 1978). However,
the party seeking to assert the defense of sovereign immunity must raise it in a pleading.
See, e.g., Mayo v. Lichtenwalner, 557 A.2d 798, 799 (Pa. Cmwlth. 1989) (explaining
that “Pa.R.C[].P. [No.] 1030 requires that the defense of immunity must be raised as
new matter,” but “where [it] is apparent on the face of the challenged pleading it will
be considered on preliminary objections unless the opposing party challenges [it].”).
Accordingly, because Defendant Gillis failed to raise sovereign immunity in his
preliminary objections, we must conclude that the trial court erred in finding, sua
sponte, that Gillis was protected by the doctrine.
             Because this Court may “affirm the judgment of a trial court where the
result is correct, even though the reason given is erroneous, when the correct basis for
the decision is clear on the record,” Rhoads v. Lancaster Parking Authority, 520 A.2d
122, 131 (Pa. Cmwlth. 1987), we must now consider whether Robinson’s complaint
sufficiently stated a claim of retaliation under 42 U.S.C. §1983.




                                      Retaliation
             Section 1983 of title 42 of the United States Code provides that:



                                            4
             Every person who, under color of any statute, ordinance,
             regulation, custom, or usage, of any State . . . 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. To succeed on a claim under 42 U.S.C. §1983, the plaintiff must
establish that an individual deprived him of a federal right and that the individual was
acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980).
             To prevail on a First Amendment retaliation claim, a petitioner must state
sufficient facts to show (1) he engaged in constitutionally protected conduct; (2) the
retaliation against that conduct resulted in adverse action; (3) the constitutionally
protected conduct was a substantial or motivating factor for the retaliation; and (4) the
retaliatory action did not further a legitimate penological goal. Yount v. Department of
Corrections, 966 A.2d 1115, 1120-21 (Pa. 2009). For purposes of this appeal, we need
not consider whether Robinson’s complaint satisfies prongs one, three, or four of the
Yount test, as the facts asserted in the complaint are insufficient to demonstrate that
Robinson suffered an adverse action as a result of Gillis’s alleged retaliatory conduct.
             In Wilson v. Marrow, 917 A.3d 357 (Pa. Cmwlth. 2007), this Court
explained:

             As a threshold matter, a state prison inmate must show he
             suffered some adverse action by prison officials in retaliation
             for engaging in constitutionally protected conduct. [Yount].
             “An inmate may satisfy the requirement of ‘adverse action’
             by demonstrating that the action taken by officials was
             sufficient to deter a person of ordinary firmness from
             exercising his constitutional rights.” [Yount, 966 A.2d] at
             1167. See also Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001)


                                           5
               (government action may be considered retaliatory if
               motivated in significant part by a desire to punish someone
               for exercising a constitutional right).

Id. at 364.
               As described above, Robinson alleges that Gillis told a jailhouse informer
that he would “get back” at Robinson for filing a grievance against him and that he was
going to try to have Robinson sent to solitary confinement. Gillis issued a misconduct
slip against Robinson, which charged him with threatening an employee and using
abusive, obscene language. Robinson also asserts that Gillis continued to tell the
informer that he would continue to try to have Robinson sent to solitary confinement
even if he had to “make up something that will stick next time.” (Am. complaint at
¶15.)
               Robinson’s complaint does not allege facts sufficient to demonstrate an
adverse action resulting from Gillis’s alleged retaliation. Particularly, Robinson does
not assert that he was actually sent to solitary confinement, as threatened by Gillis.
Furthermore, Robinson alleges that, because he filed a grievance against Gillis, he was
issued a misconduct; however, that misconduct was ultimately dismissed.3 Therefore,
we conclude that Robinson failed to satisfy the Yount test and, consequently, did not
properly assert a retaliation claim under 42 U.S.C. §1983. See generally Richardson
v. Wetzel, 74 A.3d 353 (Pa. Cmwlth. 2013) (dismissing petitioner’s retaliation claim
because he did not allege sufficient facts to support claim).




        3
          While not binding on this Court, we found the United States District Court for the Middle
District of Pennsylvania’s decision in Pigford v. Cumberland County Prison (M.D. Pa., No. 3:11-
CV-598, filed April 12, 2011), 2011 WL 1375267 (unreported), to be instructive. In the Pigford case,
the Court noted that no adverse action was suffered from the filing of false misconduct charges, where
the plaintiff was found not guilty of each misconduct.



                                                  6
                                            Conclusion
               Based upon the foregoing, we conclude that, although the trial court erred
by sua sponte applying the sovereign immunity doctrine to dismiss Robinson’s claims
against Gillis, Robinson failed to meet his burden of establishing a retaliation claim
under 42 U.S.C. §1983 and the Yount test. Specifically, Robinson failed to show that
any alleged retaliation resulted in an adverse action.4 Therefore, the trial court did not
err in dismissing Robinson’s complaint with respect to Gillis.
               Accordingly, the trial court’s August 4, 2017 order is affirmed.




                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       4
         Defendants dedicated a substantial portion of their brief to arguing that Robinson waived his
claims against Defendant Folino on appeal or, alternatively, that Defendant Folino was protected by
sovereign immunity. However, Robinson raised only two issues on appeal, and each was directed
towards the trial court’s order with respect to Defendant Gillis. Therefore, it is not necessary for us
to address any issues, including waiver, related to Defendant Folino.


                                                  7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harvey Miguel Robinson, Jr.,            :
                Appellant               :
                                        :    No. 1770 C.D. 2017
             v.                         :
                                        :
Louis S. Folino, and CO1 Gillis,        :
sued in their individual capacities     :


                                      ORDER


             AND NOW, this 8th day of June, 2018, the August 4, 2017 order of the
Court of Common Pleas of Greene County is hereby affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
