          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Joseph Koehler Jr.,                        :
                              Appellant         :
                                                :
               v.                               :      No. 776 C.D. 2018
                                                :      Submitted: November 2, 2018
Mr. John Wetzel;                                :
Mr. Christopher Oppman;                         :
Mr. Dino Angelici;                              :
Mr. Robert Gilmore;                             :
Mr. William Nicholson;                          :
Dr. Robert Krak;                                :
Dr. Celeste Kostelnik;                          :
Pennsylvania Department                         :
of Corrections                                  :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: March 22, 2019


               Appellant John Joseph Koehler, Jr. (Koehler) appeals, pro se, from an
order of the Court of Common Pleas of Greene County (trial court), dated
February 16, 2018.          The order granted preliminary objections filed by the
Pennsylvania Department of Corrections (Department), John Wetzel (Wetzel),1



      1
          Wetzel is the Secretary of the Department.
Christopher Oppman (Oppman),2 Dino Angelici (Angelici),3 Robert Gilmore
(Gilmore),4 William Nicholson (Nicholson),5 Dr. Robert Krak (Dr. Krak),6 and
Dr. Celeste Kostelnik (Dr. Kostelnik)7 (collectively, Appellees) and dismissed
Koehler’s complaint. We now reverse, in part, affirm, in part, and remand for further
proceedings.
                 On August 4, 2017, Koehler, an inmate at SCI-Greene, commenced this
action by filing a complaint with the trial court. (Original Record (O.R.), Item
No. 5.) In the complaint, Koehler averred that the individual Appellees acted as
agents and employees of the Department. (Id. at ¶ 17.) Koehler sought damages
from Appellees based on a retaliation claim. (Id. at ¶ 16.) As to the factual basis for
his claim, Koehler alleged that “on November 22, 2016, [he] sent Dr. Kostelnik a
request slip requesting dental services[, because he] had broke[n] a piece of tooth
off.” (Id. at ¶ 26.) “On November 29, 2016, [Koehler] . . . received the request slip
back with a scheduled date of December 9, 2016[,] to receive dental services.” (Id.
at ¶ 27.) “On February 14, 2017, [Koehler] . . . received dental services to repair the
broken tooth.” (Id. at ¶ 29.) Koehler averred that “[i]t took 84 days of pain and
suffering before [his] broken tooth was repaired.” (Id. at ¶ 29.) Based on those


       2
            Koehler avers that Oppman is the head of the Department’s Bureau of Health Care
Services.
       3
           Koehler avers that Angelici is the Department’s Chief of Dentistry.
       4
        Koehler avers that Gilmore is the Superintendent of the State Correctional Institution at
Greene (SCI-Greene).
       5
           Koehler avers that Nicholson is the Chief Healthcare Administrator at SCI-Greene.
       6
          Koehler avers that Dr. Krak is a licensed professional who is practicing in the specialty
of dentistry.
       7
          Koehler avers that Dr. Kostelnik is a licensed professional who is practicing in the
specialty of dentistry.

                                                 2
averments, Koehler further averred that “the failure to provide timely dental services
upon request is retaliatory in nature and specifically due to [Koehler’s] current
lawsuit against [Dr. Krak] and the [Department].” (Id. at ¶ 30.) As to the retaliatory
conduct of the individual Appellees, Koehler averred that “Dr. Krak and
Dr. Kostelnik failed to give timely dental services,” and the others “failed to insure
timely dental services.” (Id. at ¶ 31.) He further averred that the Department is
“vicariously and directly liable for the acts of” the individual Appellees. (Id.)
             Koehler attached to his complaint various documents relating to his
subject request for dental services and grievances related thereto. According to these
documents, Koehler submitted an inmate request form, dated November 22, 2016,
directed to Dr. Kostelnik, on which Koehler wrote: “A piece of my tooth broke off.
The tooth is on the right side bottom. The last molar of the right bottom. I still have
some filling left in the rest of the tooth.” An illegible signature appears at the bottom
of the form (presumably that of a staff member), dated November 28, 2016, along
with a notation that an appointment is scheduled for December 9, 2016, subject to
change.    Koehler also submitted an official inmate grievance form, dated
December 15, 2016, wherein he stated that he had been informed that he would
receive dental services on December 9, 2016, but he had yet to receive such services.
In his grievance, he averred that “the failure to provide timely dental services upon
request is retaliatory in nature [and due to his] current lawsuit against [Dr. Krak].”
(Inmate grievance form, attached to complaint.) Nicholson denied the grievance on
January 10, 2017, essentially stating that the Department was not aware of any
requests by Koehler to the dental department. Nicholson recommended that Koehler
follow established procedure in order to request relief. Koehler appealed the
grievance denial on January 19, 2017, recounting in his appeal the details set forth


                                           3
above and stating that he was still without dental services due to retaliation. The
next communication regarding the grievance is dated March 8, 2017. At that time,
Nicholson acknowledged that Koehler had provided a copy of the request for dental
services, which Nicholson appreciated and found helpful. Nicholson also noted that
Koehler received the dental services on February 14, 2017. Nicholson stated that he
did not “know the reason that [he] was moved from the list but there are usually
emergencies or [the Department] has to work on certain units due to security
concerns.” (Grievance response, dated March 8, 2017, attached to complaint.)
Nicholson denied the grievance because the matter had been resolved.
            The documents attached to the complaint indicate that, despite having
received treatment, Koehler appealed again, noting that Nicholson did not address
the 84 days of pain suffered by Koehler and again asserting that he was moved off
the list due to retaliation. Gilmore denied the grievance appeal on April 11, 2017,
stating that the appointment was subject to change and that it was not changed due
to retaliation. Koehler appealed yet again, and the Chief Grievance Officer denied
the appeal. This time, the Chief Grievance Officer explained:
            Your dental concerns were reviewed by the staff at the
            Bureau of Health Care Services. After they reviewed your
            medical records and discussed your case with [Dr. Krak],
            they determined that staff actions were appropriate and the
            treatment rendered was successful. They found no
            evidence to support claims of retaliation or unmet pain
            relief.
(Grievance response, dated June 21, 2017, attached to complaint.)
            On August 28, 2017, Appellees filed preliminary objections to
Koehler’s complaint, interpreting Koehler’s complaint as setting forth a First
Amendment retaliation claim based on Yount v. Pennsylvania Department of
Corrections, 966 A.2d 1115 (Pa. 2009). Appellees asserted that Koehler failed to

                                         4
state a First Amendment retaliation claim upon which relief could be granted.
Appellees further asserted that “[t]here are no factual allegations indicating that
Wetzel, Oppman, Angelici, or Gilmore were personally involved in the provision of
dental services” to Koehler and that “there are no factual allegations against
Nicholson in the body of the complaint.” (O.R., Item No. 25, preliminary objections,
¶¶ 17, 18.) As to Nicholson’s denial of Koehler’s grievance and appeal, Appellees
contended that the allegations against him are insufficient, because the failure of a
prison official to act favorably on an inmate’s grievance is not itself a constitutional
violation. As to whether he sufficiently pleaded facts in support of a retaliation
claim, Koehler responded that he raised an inference that the protected conduct was
a substantial factor motivating the adverse action, such that the burden shifted to the
prison to show the action would have been taken absent the protected conduct.
(Id. at ¶ 5.)8
                 The trial court sustained Appellees’ preliminary objections, holding
that Koehler failed to state a claim because he failed to plead sufficient facts relating

       8
            Appellees also contended that Koehler failed to state a claim under
42 U.S.C. § 1983 (Section 1983) as to Wetzel, Oppman, Angelici, Gilmore, and Nicholson,
because Koehler failed to allege the requisite personal involvement of those Appellees. (O.R.,
Item No. 25, ¶¶ 13-22.) Appellees also asserted that Koehler cannot maintain a cause of action
under Section 1983 against the Department, because the Department is not a “person” for purposes
of Section 1983 claims. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Koehler responded by denying that he is asserting a claim under Section 1983; rather, he is
asserting a “state tort” claim, to which he contends respondeat superior liability is applicable.
(O.R., Item No. 22, plaintiff’s response to preliminary objections at ¶¶ 7-10.) Despite his denial
that this cause of action is not a Section 1983 claim but a state tort claim, a reading of the complaint
reveals otherwise. Koehler’s request for relief asks for damages in light of the Department’s
allegedly retaliatory act. Such a request for relief only exists under Section 1983. See Brown v.
Blaine, 833 A.2d 1166, 1170 n.10 (Pa. Cmwlth. 2003) (“Section 1983 only provides for damages
when a state actor violates rights of a citizen that arise under federal law.”) We, therefore, treat
Koehler’s cause of action as a retaliation claim for damages pursuant to Section 1983.


                                                   5
to retaliation. (Id. at 7-10.) The trial court, without discussion, also sustained
Appellees’ remaining preliminary objections and dismissed the action.
              On appeal,9 Koehler argues that the trial court committed an error of
law by sustaining Appellees’ preliminary objections and dismissing his complaint.
Koehler contends that he pleaded sufficient facts to state a retaliation claim.
              Our Supreme Court, in Yount, provided the guiding principles and test
used to determine whether a prison retaliation claim will be successful. In Yount,
the Supreme Court explained:
              Retaliation claims are guided by the United States
              Supreme Court’s decision in Turner v. Safley, 482 U.S. 78
              . . . (1987), which held “courts are ill equipped to deal with
              the increasingly urgent problems of prison
              administration . . . ,” and great deference must be
              accorded to the administrative determinations of prison
              officials. The United States Supreme Court further
              recognized prison rules and regulations are presumptively
              valid unless a prisoner proves otherwise.

              Although the elements of a prison retaliation claim differ
              slightly among federal courts, generally courts require

       9
         In Brown v. Wetzel, 179 A.3d 1161 (Pa. Cmwlth. 2018), this Court set forth our standard
of review, as follows:
       Where a [trial court] dismisses a complaint based on preliminary objections, this
       Court’s review is limited to determining whether the trial court committed an error
       of law or an abuse of discretion. When considering preliminary objections, we
       must accept as true all well-pleaded material facts alleged in the complaint and all
       reasonable inferences deducible therefrom. A preliminary objection should be
       sustained only in cases when, based on the facts pleaded, it is clear and free from
       doubt that the facts pleaded are legally insufficient to establish a right to relief.
       Because a preliminary objection in the nature of a demurrer presents a question of
       law, this Court’s standard of review of a [trial court’s] decision to sustain a
       demurrer is de novo and the scope of review is plenary.
Brown, 179 A.3d at 1164 n.2.


                                                6
             proof the inmate engaged in constitutionally protected
             conduct, prison officials took adverse action, and the
             protected conduct was a substantial or motivating factor
             for the action.
             ....
             The final test for a retaliation claim . . . was set forth in
             Abdul–Akbar       [v.    Department       of   Corrections,
             910 F. Supp. 986 (D. Del. 1995)]. Under this test, the
             burden of proof is placed on the prisoner to disprove a
             legitimate penological goal as well as to prove the other
             required elements of a retaliation claim.

Yount, 966 A.2d at 1119-20 (citations omitted). This Court has reformulated the test
discussed in Yount, highlighting four elements that must be proven in order for an
inmate to bring a successful retaliation claim under the First Amendment. See
Richardson v. Wetzel, 74 A.3d 353, 357 (Pa. Cmwlth. 2013). The reformulated test
requires that the inmate prove the following:         “(1) [the inmate] engaged in
constitutionally protected conduct; (2) the retaliation against that conduct resulted in
adverse action; (3) the protected conduct was a substantial and motivating factor for
the retaliation; and (4) the retaliatory action did not further a legitimate penological
goal.” Id. A prisoner who alleges retaliation for filing a grievance or a lawsuit
against prison staff invokes the First Amendment right of access to the courts. Yount,
966 A.2d at 1121. Where the second element is concerned—i.e., retaliation resulting
in adverse action—the Supreme Court in Yount explained that an inmate may prove
adverse action by showing that the alleged retaliatory act was “sufficient to deter a
person of ordinary firmness from exercising his [constitutional rights].” Yount,
966 A.2d at 1121 (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
             With respect to the first element, the trial court concluded that Koehler
was engaged in constitutionally protected conduct when he filed the prior suit against
Dr. Krak for an unrelated injury, and neither Koehler nor Appellees challenge the

                                           7
trial court’s finding that Koehler sufficiently pleaded this element. Where the
second element is concerned, Koehler argues that Appellees engaged in retaliatory
conduct because Appellees were aware of the pending lawsuit against Dr. Krak and
deliberately caused a delay of 84 days in providing Koehler with dental services for
his broken tooth. Koehler posits that the delay in his receipt of dental services
constituted an adverse action. Koehler further posits that he now has a “permanent
fear that the dentist will make [him] wait for services.” (O.R., Item No. 27 at 8.) At
the preliminary objection stage, Koehler has stated enough facts to show that the
allegedly retaliatory act was of the kind that would dissuade an individual of ordinary
firmness from exercising his or her constitutional rights. See Yount, 966 A.2d
at 1121 (“Where a plaintiff advances a colorable, but not necessarily
incontrovertible, argument he was subjected to adverse action, the issue is best
resolved by the fact-finder.”). Koehler has, therefore, pleaded the requirements of
the second element.
             The third element requires a showing that the action or conduct at issue
is retaliatory in nature and that the constitutionally protected conduct was a
substantial and motivating factor for said conduct.         Koehler avers that “the
motivating factor for the retaliation is the lawsuit against Dr. Krak and [the
Department]. [Koehler] believes he would not have been removed from the list to
have his broken tooth repaired [] if it was not for [Koehler’s] lawsuit against
Dr. Krak and [the Department].” (O.R., Item No. 17 at 3.) In other words, Koehler
alleges that Dr. Krak’s knowledge of the pending lawsuit against him—i.e., the
protected conduct—prompted Appellees to delay providing dental services to
Koehler. Koehler’s averments are, therefore, enough to defeat an objection based




                                          8
on legal insufficiency of the assertion that Appellees caused a delay in providing
dental services due to Koehler’s pending lawsuit against Dr. Krak.
             Concerning the fourth element, Koehler claims that Appellees’ alleged
retaliatory action did not further a penological goal because it only served to remove
him from the institution’s waiting list for dental services and such an action does not
appear to further a penological goal. Although minimally developed, Koehler has
pleaded sufficient facts that Appellees’ alleged retaliatory action did not further a
penological goal. Koehler’s retaliation claim survives a preliminary objection in the
nature of a demurrer.
             With respect to Appellees’ preliminary objection that Koehler failed to
sufficiently allege personal involvement by Wetzel, Oppman, Angelici, Gilmore, or
Nicholson in any alleged civil rights violations, we agree. In order to state a claim
under Section 1983, a plaintiff must “(1) allege a violation of rights secured by the
United States Constitution or the laws of the United States, and (2) show the alleged
deprivation was committed by a person acting under the color of state law.” Owens
v. Shannon, 808 A.2d 607, 609 n.6 (Pa. Cmwlth. 2002).                To prevail in a
Section 1983 suit against a supervisory official, a plaintiff must demonstrate the
supervising defendant had personal involvement in the alleged wrongs. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). The body of the complaint is devoid of any factual
averments as to how those individuals engaged in retaliation. Thus, because the
complaint fails to plead with particularity any specific facts against them, Koehler
has failed to state a claim as to those individual Appellees.
             Concerning Appellees’ preliminary objection arguing that Koehler
cannot maintain a cause of action against the Department because the Department is
not a “person” pursuant to Section 1983, we also agree. It is settled law within this


                                          9
Commonwealth that “the Commonwealth, [] department[s] of the Commonwealth,
and officials acting in their official capacities are not ‘persons’ under
[Section 1983].” Pa. Workers’ Comp. Judges Prof’l Ass’n v. Exec. Bd. of the
Cmwlth., 39 A.3d 486, 493 (Pa. Cmwlth. 2012), aff’d, 66 A.3d 765 (Pa. 2013).
These parties are, therefore, not subject to suit under Section 1983. Accordingly,
Koehler may not maintain the Section 1983 claim against the Department.
              For the reasons discussed above, we reverse the trial court’s order to
the extent it sustained Appellees’ preliminary objection that Koehler’s complaint
fails to assert generally a First Amendment retaliation claim upon which relief could
be granted. As to Appellees’ preliminary objection that Koehler’s complaint fails to
allege the requisite personal involvement on the part of Wetzel, Oppman, Angelici,
Gilmore, and Nicholson, we affirm the trial court’s order.10 Concerning Appellees’
preliminary objection that Koehler cannot maintain the suit against the Department
because it is not a “person” under the meaning of Section 1983, we affirm the trial
court’s order. We remand the matter to the trial court for purposes of the claims
against Dr. Robert Krak and Dr. Kostelnik.




                                             P. KEVIN BROBSON, Judge




       10
         We note that Koehler does not argue that the trial court should have allowed him to
amend his complaint.

                                            10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Joseph Koehler Jr.,                  :
                           Appellant      :
                                          :
             v.                           :   No. 776 C.D. 2018
                                          :
Mr. John Wetzel;                          :
Mr. Christopher Oppman;                   :
Mr. Dino Angelici;                        :
Mr. Robert Gilmore;                       :
Mr. William Nicholson;                    :
Dr. Robert Krak;                          :
Dr. Celeste Kostelnik;                    :
Pennsylvania Department                   :
of Corrections                            :

                                       ORDER

             AND NOW, this 22nd day of March, 2019, the order of the Court of
Common Pleas of Greene County (trial court), dated February 16, 2018, sustaining
Appellees’ Preliminary Objections and dismissing John Joseph Koehler, Jr.’s
(Koehler) cause of action for First Amendment retaliation, is hereby AFFIRMED,
in part, and REVERSED, in part. The trial court’s order is REVERSED to the extent
it sustained Appellees’ preliminary objection that Koehler’s complaint fails to assert
generally a retaliation claim upon which relief could be granted. The trial court’s
order is AFFIRMED to the extent that it sustained Appellees’ preliminary objection
that Koehler’s complaint fails to allege the requisite personal involvement on the
part of John Wetzel, Christopher Oppman, Dino Angelici, Robert Gilmore, and
William Nicholson and dismissed them from this matter. The trial court’s order is
AFFIRMED to the extent that it sustained Appellee’s’ preliminary objection that
Koehler cannot maintain the suit against the Department of Corrections
(Department) because it is not a “person” pursuant to 42 U.S.C. § 1983 and
dismissed the Department from this matter. The matter is REMANDED to the trial
court for purposes of the claims against Dr. Krak and Dr. Kostelnik.
            Jurisdiction relinquished.




                                         P. KEVIN BROBSON, Judge
