HAMMOND v. KRAK et al

Filing 44

MEMORANDUM OPINION granting in part and denying in part 38 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM re: Amended Complaint [ECF No. 35] filed by DORINA VARNER, VICTORIA STANISHEFSKI, BALAS, JOHN E. WETZEL, IRMA VIHLIDAL, ROBERT M. KRAK, THE BUREAU OF HEALTH CARE SERVICES, LOUIS FOLINO. Signed by Chief Magistrate Judge Cynthia Reed Eddy on 11/8/2018. (sms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
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KHALIL HAMMOND,
Plaintiff,
vs.
ROBERT M. KRAK, D.M.D.;
SUPERINTENDANT LOUIS FOLINO,
IRMA VIHLIDAL, HELATH CARE
ADMINISTRATOR; JOHN E. WETZEL,
SECRETARY OF CORRECTIONS;
DORINA VARNER, CHIEF GRIEVANCE
OFFICER; DR. BALAS, D.M.D.;
VICTORIA STANISHEFSKI, HEALTH
CARE ADMINISTRATOR; AND THE
BUREAU OF HEALTH CARE SERVICES,
THROUGH IT'S DIRECTOR JOHN DOE;
Defendants,

2:17-CV-00952-CRE

MEMORANDUM OPINION1
CYNTHIA REED EDDY, Chief United States Magistrate Judge.
I.

INTRODUCTION
This prisoner civil rights action was initiated by Plaintiff Khalil Hammond, proceeding pro

se against Defendants Robert M. Krak, D.M.D. (“Dr. Krak”), Superintendent Louis Folino
(“Superintendent Folino”), Health Care Administrator Irma Vihlidal (“Administrator Vihlidal”),
Secretary of Corrections John E. Wetzel (“Secretary Wetzel”), Chief Grievance Officer Dorina
Varner (“Grievance Officer Varner”), Dr. Balas, D.M.D. (“Dr. Balas”), Health Care Administrator
Victoria Stanishefski (“Administrator Stanishefski”), and the Bureau of Health Care Services for

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All represented parties have consented to jurisdiction before a United States Magistrate
Judge; therefore the Court has the authority to decide dispositive motions, and to eventually enter
final judgment. See 28 U.S.C. § 636, et seq.
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the alleged mistreatment of Plaintiff’s dental issues. Presently for disposition is Defendants’
collective motion to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim.
For the reasons that follow, Defendants’ motion is granted in part and denied in part.
II.

BACKGROUND
Plaintiff Khalil Hammond is a prisoner currently housed at State Correctional Institution

(“SCI”) at Fayette in Pennsylvania. In his Amended Complaint, Plaintiff generally asserts that the
Defendants violated his First, Eighth and Fourteenth Amendment rights pursuant to 42 U.S.C. §
1983, asserts that Defendants violated his rights under the Pennsylvania constitution, and asserts
that Defendants were negligent, committed professional malpractice and conspired together under
state law in connection with dental care and treatment he received during his incarceration at SCIGreene from June 2013 through December 2013 and at SCI-Frackville from October 2014 through
June 2015.
a. State Court Litigation
Prior to filing the instant federal lawsuit, on or about May 13, 2015, Plaintiff initiated a
lawsuit in the Court of Common Pleas of Greene County, Pennsylvania against Dr. Krak,
Superintendent Folino, Secretary Wetzel, Officer Varner and John and Jane Does 1 through 3 who
were alleged to have been DOC employees and “persons responsible for screening, training or
supervising dental personel(sic) and or officials named in this complaint.” Pl.’s State Court Compl.
(ECF No. 39-4) at ¶ 8. In his state court complaint, Plaintiff alleged that on June 28, 2013, he had
been treated by Dr. Krak who informed him that he needed a tooth pulled because it had abscessed
and Plaintiff agreed to have his tooth pulled. Id. at ¶¶ 10-13. Plaintiff says that the tooth that Dr.
Krak pulled had been giving him issues for two and a half months and believed it was because his

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filling had come out and food particles were stuck inside the opening. Id. at ¶¶ 14-15. Plaintiff
alleged that the reason that he needed the tooth pulled was because of a lack of appropriate and
timely dental care and he filed Grievance No. 464603 regarding the allegedly delayed dental
treatment. Id. at ¶ 16. Plaintiff alleged that prison officials responded to his grievance and
informed him that any delay in dental treatment was due to Plaintiff being housed in the Restricted
Housing Unit (RHU). Id at ¶¶ 17-19.
Further, Plaintiff alleged in the state court complaint that on or about July 5, 2013, he was
again seen by Dr. Krak who informed Plaintiff that he would be receiving a root canal procedure.
Plaintiff alleged that forty-five minutes after Dr. Krak began the procedure, Dr. Krak “suddenly
stopped and informed plaintiff that he could not continue the procedure” because the canal way
was calcified and Dr. Krak could not reach the root. Id. at ¶ 29. Dr. Krak then stopped the
procedure and informed Plaintiff that he could either have his tooth pulled or have it filled with a
temporary filling but the root canal could not be completed and ultimately his tooth would have to
be pulled. Id. at ¶¶ 31-33. Plaintiff alleged that he asked Dr. Krak how the tooth calcified and Dr.
Krak explained to Plaintiff that an old temporary filling was left in the tooth too long without
finishing the filling which caused the calcification. Plaintiff alleged that it was “the practice of
DOC employed dentist to attempt [to] convinc[e] inmates [to get] their teeth pulled out rather
th[a]n fix the problem due to it being cheaper just to pull the tooth th[a]n to actually fix it.” Id. at
¶ 34. Plaintiff alleged that after his procedure, he filed Grievance No. 487379 and complained that
“his tooth was drilled on for 45 minutes in an erron[e]ous procedure that couldn’t be finished and
unnecessarily subjected him to a[]lot of pain subsequ[e]nt to plaintiff’s dental concerns being
neglected for months.” Id. at ¶ 36.
Plaintiff further alleged in his complaint that Dr. Krak “was not proficient in his

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professional duty to provide adequate dental care to plaintiff, nor did he adequately inform plaintiff
of the procedure before plaintiff consented to having it done.” Id. at ¶ 40. Plaintiff alleged that
Superintendent Folino and Secretary Weztel had an “obligation to provide for the safety and health
concerns of inmates like plaintiff by ensuring that staff and healthcare professionals at SCI Greene
under his command were performing up to standard and not causing inmates an unnecessary risk
of harm[,]” and that Superintendent Folino was aware of serious complaints “of negligence and
incompetence” against Dr. Krak but “failed to conduct reasonable investigation or intervene[.]”
Id. at ¶¶ 44-45.

Plaintiff alleged that Officer Varner intentionally sabotaged final grievance

responses so that inmates could not meet the court’s exhaustion requirements. Id. at ¶¶ 48-52.
Plaintiff alleged that the John Doe defendants failed to train, screen or supervise Dr. Krak,
Superintendent Folino, Secretary Weztel and Officer Varner.
Plaintiff alleged, inter alia, that he suffered the loss of his top front teeth, and pain and
mental anguish from suffering through a root canal procedure which could not be completed.
Plaintiff asserted the following claims in his state court complaint: two deliberate indifference to
serious medical needs in violation of the Eighth Amendment against Dr. Krak for his delayed
medical care and allegedly negligent care in performing the “erroneous” root canal procedure;
various Eighth Amendment claims against the remaining defendants for deliberate indifference,
failure to intervene, failure to investigate, failure to screen and train, a First Amendment retaliation
claim against Dr. Krak, Superintendent Folino and Secretary Weztel; an equal protection claim
pursuant to the Fourteenth Amendment against Dr. Krak, Superintendent Folino and Secretary
Wetzel, two claims for intentional infliction of emotional distress against all of the named
defendants; a negligence claim against Dr. Krak; a conspiracy claim against Superintendent
Folino, Secretary Wetzel and Officer Varner; and a due process violation pursuant to the

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Fourteenth Amendment against Superintendent Folino, Secretary Wetzel and Officer Varner.
Plaintiff further alleged that he exhausted his administrative remedies with regard to the
grievances that he filed. Plaintiff sought a declaration that his constitutional rights were violated,
a preliminary and permanent injunction to provide Plaintiff with adequate medical care and to
revise DOC policy to allow inmates housed in the RHU to receive dental care and monetary
damages.
On or about June 23, 2015, after Plaintiff’s state court complaint was filed, he was
transferred to SCI Pittsburgh and the next day received a successful root canal on or about June
24, 2015. On July 20, 2015, the Court of Common Pleas of Greene County dismissed Plaintiff’s
state court case with prejudice. See State Court Order (ECF No 35 at 28). It is undisputed that
Plaintiff did not file an appeal to the dismissal of his state court case.
b. The Present Federal Action
On or about July 20, 2017 Plaintiff initiated the present action. In his amended complaint,
he names as defendants the following: his attending dentist at SCI Greene Dr. Krak,
Superintendent Folino of SCI Greene, Health Care Administrator Vihlidal of SCI Greene,
Secretary of Corrections Wetzel, Grievance Officer Varner of Pennsylvania DOC, his attending
dentist at SCI Frackville, Dr. Balas, Health Care Administrator Stanishefski of SCI Frackville, and
the Bureau of Health Care Services at DOC.
According to Plaintiff’s federal complaint, between April 10, 2013 and June 23, 2013,
Plaintiff informed Dr. Krak through several sick calls and request slips that he was in extreme pain
due to a loose filling in his tooth which allowed “stuff” to get inside of the hole in the tooth. Am.
Compl. (ECF No. 35) at ¶ 10. Plaintiff alleges that he was denied treatment because he was “on
movement restriction” until June 28, 2013. Id. at ¶ 11. Plaintiff asserts that the lack of treatment

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caused his tooth to abscess and the tooth was extracted by Dr. Krak on June 28, 2013. Plaintiff
alleges that the “standard practice for [a] dentist [is] to first treat the infection to see if the tooth
can be saved[,] before considering e[]xtraction as an option.” Id. at ¶ 14. Plaintiff asserts that Dr.
Krak has a practice of extracting inmate’s teeth instead of employing “alternative procedures” to
save the tooth. Id. at ¶ 15.
Plaintiff alleges he was again seen by Dr. Krak on July 5, 2013 for a root canal procedure.
During the procedure, Dr. Krak informed Plaintiff that he could not finish the procedure because
there was “calsification in the canal way that was prohibiting him from reaching the root and if he
continued any further that plaintiff could be hurt in the process.” Id. at ¶ 17. Plaintiff asked Dr.
Krak how a tooth builds calsification, to which Dr. Krak purportedly responded it was due to a
temporary tooth filling being left in too long without finishing the filling. At that time, Dr. Krak
informed Plaintiff that he could either place in a permanent filling or extract the tooth, but the tooth
would ultimately need to be pulled to not cause issues for Plaintiff’s remaining teeth. Plaintiff
requested that a filling be placed in his tooth. Plaintiff alleges that he filed grievances regarding
Dr. Krak’s conduct which were denied.
Plaintiff asserts that between July 5, 2013 and December 6, 2013, he experienced daily
facial pain, blinding headaches, blurred vision and loss of sleep due to his tooth. He alleges that
he “wrote several complaints of pain” to Dr. Krak which were unanswered until he wrote “request
slips and letters to defendants Wetzel, Vihlidal, the Office of Special Investigations and
Intelligence as well as almost every member of administration at SCI Greene.” Id. at ¶ 26. On
December 6, 2013, Plaintiff presented to Dr. Krak for his tooth pain. Plaintiff alleges that Dr. Krak
was antagonistic to him and told Plaintiff to buy Tylenol from the commissary and put a warm
compress on his face for the pain.

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Plaintiff was transferred to SCI-Albion on December 26, 2013, where he also complained
about tooth pain, but was told he should continue taking Tylenol and Mobic. Plaintiff alleges that
the dental personnel at SCI Albion did not do anything about his tooth pain and reasserted that Dr.
Krak said it should be extracted.
Plaintiff was transferred to SCI-Frackville on October 1, 2014, and seen by dental staff on
June 4, 2015 who Plaintiff claims tried to convince him to extract his tooth “instead of fix[ing]”
his tooth. Id. at ¶ 39. Plaintiff denied the extraction and was made to sign a waiver.
On June 23, 2015, Plaintiff was transferred to SCI-Pittsburgh and received a successful
root canal on June 24, 2015.
In his federal complaint, Plaintiff asserts the following claims:
(1) A First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 against all of the
named defendants;
(2) An Eighth Amendment deliberate indifference claim pursuant to 42 U.S.C. § 1983
against all named defendants;
(3) A Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983 against Defendants Dr.
Krak, Dr. Balas, Health Care Administrators Vihlidal and Stanishefski and the Bureau
of Health Care Services;
(4) A negligence claim against Defendants Dr. Krak, Dr. Balas, Health Care
Administrators Vihlidal and Stanishefski and the Bureau of Health Care Services;
(5) A “malpractice” claim against Defendants Dr. Krak, Dr. Balas, Health Care
Administrators Vihlidal and Stanishefski and the Bureau of Health Care Services (ECF
No. 35 at p. 20);
(6) A civil conspiracy claim against all named defendants;

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(7) An “Article I Section 13 violation” ostensibly pursuant to the Pennsylvania
Constitution against Defendants Dr. Krak, Dr. Balas, Health Care Administrators
Vihlidal and Stanishefski and the Bureau of Health Care Services (ECF No. 35 at p.
21); and
(8) An “Article I Section 26 violation” ostensibly pursuant to the Pennsylvania constitution
against Defendant Bureau of Health Care Services.
Defendants now move to dismiss Plaintiff’s complaint.
III.

STANDARD OF REVIEW
a. Pro Se Litigants
Pro se pleadings are held to a less stringent standard than more formal pleadings drafted

by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). As such, a pro se complaint pursuant to 42 U.S.C. § 1983 must be construed liberally,
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston
v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). In other words, if the court can
reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so
despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence
construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454
U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)
(petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of
tolerance”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to
allege sufficient facts to support a cognizable legal claim. See e.g., Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002). Because Plaintiff is a pro se litigant, this Court may consider
facts and make inferences where it is appropriate.

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b. Federal Rule of Civil Procedure 12(b)(6)
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled.
Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil
Procedure 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A complaint that merely alleges entitlement to relief, without alleging
facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203,
211 (3d Cir. 2009). This “ ‘does not impose a probability requirement at the pleading stage,’ but
instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Twombly, 550 U.S. at 556). Nevertheless, the court need not accept as true
“unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino
Corp., 232 F.3d 173, 183–84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal
conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether
a plaintiff is entitled to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974). The court does not consider whether a plaintiff will ultimately prevail. See id. A
defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See
Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). In short, a motion to dismiss
should not be granted if a party alleges facts, which could, if established at trial, entitle him to

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relief. Twombly, 550 U.S. at 563 n.8.
IV.

DISCUSSION
Defendants move to dismiss Plaintiff’s complaint by arguing that: (1) Plaintiff’s claims are

time barred; (2) the Rooker-Feldman doctrine bars Plaintiff’s claims; (3) the doctrine of res
judicata bars Plaintiff’s claims; (4) the Bureau of Health Care Services is not a “person” for section
1983 purposes; and (5) that Plaintiff’s claims are barred by the Eleventh Amendment. Each
argument will be addressed in turn.
a. Statute of Limitations
First, Defendants argue that Plaintiff’s claims are time barred. In section 1983 actions, the
statute of limitations is borrowed from the general personal injury statute of limitations of the state
in which it sits. See Owens v. Okure, 488 U.S. 235, 249–51 (1989). In Pennsylvania, the statute
of limitations for personal injury actions is two years. Garvin v. City of Philadelphia, 354 F.3d
215, 220 (3d Cir. 2003) (citing 42 Pa. Cons. Stat. § 5524(7)). Therefore, Plaintiff had two years
from the time his cause of action accrued to file his complaint. A cause of action under section
1983 accrues when a plaintiff knew or should have known that his rights were violated. Genty v.
Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). In other words, a cause of action accrues
when “the first significant event necessary to make the claim suable” occurs. Lake v. Arnold, 232
F.3d 360, 366 (3d Cir. 2000). See also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1386 (3d Cir. 1994) (“a claim accrues in a federal cause of action as soon as a potential
claimant either is aware, or should be aware, of the existence of and source of an injury.”).
Generally, “[t]he running of statute of limitations is an affirmative defense” Wisniewski v. Fisher,
857 F.3d 152, 158 (3d Cir. 2017), and a district court can only dismiss a prisoner’s section 1983
claims on this basis if “it is clear from the face of the complaint that there are no meritorious tolling

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issues[.]” Jackson v. Rodriguez, 728 Fed. Appx. 78, 79 (3d Cir. 2018) (unpublished) (quoting
Vasquez Arroyo v. Starks, 589 F.3d 1091, 1097 (10th Cir. 2009) (parenthetical citations omitted)).
Under the federal Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, the statute
of limitations applicable to section 1983 actions are tolled while the prisoner exhausts the
administrative remedies available to him. Wisniewski, 857 F.3d at 158. See also Carter v.
Pennsylvania Dept. of Corrections, CIV A 08-0279, 2008 WL 5250433, at *11 (E.D. Pa. Dec. 17,
2008) (“[T]he statute of limitations begins to run only when [a] plaintiff has exhausted his
administrative remedies under the PLRA.”).
Here, Defendants argue that Plaintiff’s claims are time-barred because Plaintiff’s complaint
focuses on actions that occurred in 2013 through 2015. Defendants argue that because Plaintiff
did not file the action until July 20, 2017, and all of Plaintiff’s claims are based upon events that
occurred before July 20, 2015, his claims are barred by the two-year statute of limitations
prescribed to his Section 1983 and state law claims. Defendants further argue that Plaintiff knew
of his injury by at least May 2015, when he filed his lawsuit in the Court of Common Pleas of
Greene County recounting essentially the same claims he asserts here.
Plaintiff responds that he did not discover all of the facts giving rise to his claims in this
case until at least June 25, 2015, when he received the root canal procedure in SCI Pittsburgh and
that Defendants had led him to believe his tooth was irreparable until that point. Further, Plaintiff
responds that he had not fully exhausted his claims under the grievance process, and his grievance
was not fully exhausted until October 6, 2015. Plaintiff argues that because a statute of limitations
is tolled while the prisoner exhausts his grievance, and because he filed his suit here by July 2017,
his claims are timely.
Plaintiff filed the present action on July 20, 2017, but the PLRA is clear that a prisoner

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must exhaust all administrative remedies prior to filing suit and that the statute of limitations is
tolled during that time frame. Although some of the actions that Plaintiff complains of occurred
more than two years prior to the filing of his complaint, the statute of limitations was tolled during
the time Plaintiff exhausted his grievances which complained of his allegedly inadequate dental
care. Accordingly, it cannot be determined from the face of the complaint alone whether the statute
of limitations bars Plaintiff’s claims and Defendants’ motion is denied in this respect. While
Defendants also argue that Plaintiff’s prior suit is evidence that Plaintiff knew or should have
known of his injuries by at least May 2015 when he filed his state court suit – and because he did
not file this suit until July 2017, it is time barred – the court cannot make such a determination at
the motion to dismiss stage considering the interplay between Plaintiff exhausting his grievances
and the tolling which occurs during that process. Accordingly, Defendants’ motion is denied on
those grounds.
b. Rooker-Feldman Doctrine2
Next Defendants argue that Plaintiff’s claims are barred by the Rooker-Feldman doctrine.
A motion to dismiss invoking the Rooker-Feldman doctrine is a factual challenge to the court’s
subject matter jurisdiction. Calipo v. Erie County Prison, CV 16-198, 2017 WL 1316367, at *2
(W.D. Pa. Apr. 10, 2017) (citations omitted); Slavko Properties, Inc. v. T.D. Bank, N.A., CIV.A.
14-05045, 2015 WL 1874233, at *4 (E.D. Pa. Apr. 24, 2015) (collecting cases). The Rooker-

Defendants do not move to dismiss Plaintiff’s complaint under Rule 12(b)(1), nor do they
reference the lack of this court’s jurisdiction at any point in their briefing, although a challenge
under Rooker-Feldman is a factual jurisdictional challenge under Rule 12(b)(1). Gould Elecs. Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000); McCurdy v. Esmonde, 2003 WL 223412, at *4
(E.D. Pa. Jan. 30, 2003). Because it is clear that the Rooker-Feldman doctrine was not fully briefed
and further has no application in this case, the court will not belabor the standard of review afforded
to factual jurisdiction challenges.
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Feldman doctrine “is a ‘narrow doctrine’ that ‘applies only in limited circumstances.’ ” Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 169 (3d Cir. 2010) (quoting Lance
v. Dennis, 546 U.S. 459, 464–66, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006)). The Rooker-Feldman
doctrine “is restricted to cases where four requirements are met: (1) the federal plaintiff lost in
state court, (2) the plaintiff complains of injuries caused by the state-court judgment, (3) that
judgment issued before the federal suit was filed, and (4) the plaintiff invites the district court to
review and reject the state-court judgment.” Geness v. Cox, 902 F.3d 344, 360 (3d Cir. 2018)
(citations and internal quotations omitted).
The court finds it hard-pressed to find that Defendants have adequately briefed this issue
and further how it applies in this situation. Defendants do not explain in their brief what claims
Plaintiff raised in the state court action, how they relate to the claims asserted here and how the
Rooker-Feldman doctrine applies here.

Defendants do not address to the four-part test

promulgated by the Court of Appeals for the Third Circuit set forth supra, nor do they explain how
it applies here. Instead, the entirety of Defendants’ argument is that Plaintiff “is asking this Court
to review the previous state court proceeding . . . and conclude the ruling made in that matter was
wrong[,]” and that the claims are “identical or substantially similar” to each other are were
previously dismissed with prejudice. Defs.’ Br. in Supp. of Mot. to Dismiss (ECF No. 39) at 7-8.
Instead of explaining how the claims in the state court action are “identical or substantially similar”
to the claims raised here, Defendants attached the state court complaint as an exhibit to its brief
and referred the court to it. The court can not divine counsel’s position from a document passively
incorporated into his brief by reference where counsel has made no attempts to explain its
application. Even if Defendants adequately briefed this issue, the Rooker-Feldman doctrine is
inapplicable in the instant case. The Rooker-Feldman doctrine only applies where the state court

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loser is complaining of injuries caused by the state court judgment. Plaintiff does not allege at any
point in his present complaint that the state court judgment caused him injury. Accordingly,
Defendants’ motion to dismiss is denied in this respect.
c. Res Judicata (Claim Preclusion)
Defendants next argue that Plaintiff’s complaint is barred by the doctrine of res judicata.
Defendants argue that because the state court action that was asserted by Plaintiff regarding the
same set of facts as alleged here was dismissed by the state court with prejudice, that the present
action is barred by the doctrine of res judicata. While res judicata is an affirmative defense, it
may be presented by a motion to dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6) if it is apparent from the face of the complaint that it applies. Rycoline
Products, Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). The doctrine of res judicata
bars suit where “there has been (1) a final judgment on the merits in a prior suit involving (2) the
same claim and (3) the same parties or their privies.” U.S. v. 5 Unlabeled Boxes, 572 F.3d 169,
173 (3d Cir. 2009). The court takes a “broad view of what constitutes the same cause of action”
and “res judicata . . . turn[s] on the essential similarity of the underlying events giving rise to the
various legal claims.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 260 (3d Cir.2010) (quoting
Churchill v. Star Enters., 183 F.3d 184, 194 (3d Cir.1999)).
Again, instead of fully briefing the issue, Defendants essentially ask this court to construct
their argument for them. Defendants do not explain what claims Plaintiff raised in the state court
action, how those claims relate to the claims asserted in the present action; what parties were
named in the state court case versus the parties named in the present complaint; whether plaintiff’s
theory of recovery is the same here as it was in the state court action; or, most importantly, explain
at all how the material facts alleged here are the same as Plaintiff raised in the state court case. See

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Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 277 (3d Cir. 2014) (the court should consider (1)
whether the acts complained of and the demand for relief are the same . . . ; (2) whether the theory
of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same .
. . ; and (4) whether the material facts alleged are the same.) (citations omitted)). Instead,
Defendants argue, in toto, that “Plaintiff’s claims brought against [the Defendants] are identical to
the claims brought in the previous action filed in the state court. Those claims were dismiss[sic]
with prejudice by the Common Pleas Court on July 20, 2015. No proper appeal was taken from
that dismissal. Clearly, the pending claims against these Defendants are barred by the doctrine of
res judicata. However, all of the claims pending in the instant action could have been raised in
the earlier proceeding and, therefore, res judicata bars those claims as well. . . . In the present
action, Plaintiff’s claims are based on alleged wrongs occurring between 2013 and June 2015.
Plaintiff filed his prior suit in mid-May 2015. At that time, Plaintiff could have asserted all of the
present claims in the state court action, but chose not to do so.” Def.’s Br. in Supp. of Mot. to
Dismiss (ECF No. 39) at 9-10 (emphasis in original). Again, attaching the Plaintiff’s state court
complaint to Defendants’ motion to dismiss and simply referencing it in passing and not explaining
its application does not bring the issues properly before the court. Such generalizations without
citation to the record or any facts alleged in this case or in the state court case will not be recognized
as properly brought before the court for consideration, and Defendants’ motion is denied in this
respect.
While the court will deny Defendants’ motion to dismiss on the basis of res judicata at this
juncture, from a cursory reading, it appears that the allegations made in Plaintiff’s state court
complaint and the allegations set forth in Plaintiff’s federal complaint overlap. Because res
judicata is a threshold issue that should be decided prior to addressing the merits of Plaintiff’s

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claims, the court will first allow discovery solely to determine whether res judicata bars Plaintiff’s
instant federal complaint. After that period of discovery, Defendants shall file a motion for
summary judgment solely on the issue of res judicata. Defendants’ shall fully brief this issue by
addressing all applicable law and setting forth all facts upon which they rely. Should the court
determine that the case survives summary judgment on the basis of res judicata, the court will
allow another period of discovery on the merits of Plaintiff’s remaining claims.
d. “Person” under 42 U.S.C. § 1983
Next, Defendants argue that the Bureau of Health Care Services is not a “person” for
purposes of section 1983 and should be dismissed with prejudice.
42 U.S.C. § 1983 provides private citizens a cause of action for violations of federal law
by state officials. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, 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. Therefore, in order to state a claim under section 1983, a plaintiff must
adequately allege a “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.” West v. Atkins, 487 U.S. 42, 48 (1988). Therefore, liability under section 1983 is limited to
“persons” who violate constitutional rights. A state or state agency is not a person under section
1983 and are not subject to suit under section 1983. Hafer v. Melo, 502 U.S. 21, 25-27 (1991).
Likewise, neither a prison, nor a prison department falls within the “person” requirement of section
1983. Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973) (holding that the New Jersey Prison
Medical Department was not a “person” under 42 U.S.C. § 1983). The section 1983 claims against
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the Bureau of Health Care Services must be dismissed with prejudice, as it is not a person under
section 1983. Accordingly, Defendants’ motion to dismiss is granted in this respect and Plaintiff’s
claims made pursuant to section 1983 against Defendant Bureau of Health Care Services are
dismissed with prejudice as amendment would be futile.3 Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) (civil rights plaintiffs bringing section 1983
actions should be given leave to amend unless doing so would be “inequitable or futile.”).
e. Eleventh Amendment Immunity
Lastly, Defendants argue that the Eleventh Amendment bars Plaintiff’s claims against any
Defendant named in their official capacity and the Bureau of Health Care Services.
The Eleventh Amendment is akin to a jurisdiction bar to suits against states, its agencies
and state officials in federal court, unless certain exceptions apply. Edelman v. Jordan, 415 U.S.
651, 678 (1974) (the “Eleventh Amendment defense sufficiently partakes of the nature of a
jurisdictional bar so that it need not be raised in the trial court[.]”). Those exceptions have been
delineated as: (1) where Congress has abrogated the state’s immunity; (2) where the state has
waived its own immunity; or (3) the plaintiff sues against an individual state officers for
prospective relief to end an ongoing violation of federal law. MCI Telecommunication Corp. v.
Bell A. Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001). Section 1983 does not abrogate a state’s
Eleventh Amendment immunity, Quern v. Jordan, 440 U.S. 332, 332-40 (1979), and the
Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity. Lavia v.
Pennsylvania, Dept. of Corrections, 224 F.3d 190, 195 (3d Cir. 2000); 42 Pa. Const. Stat. Ann. §
8521(b).

3

This includes Counts I, II, III and IV, to the extent that Plaintiff is asserting a conspiracy
claim under section 1983.
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In the instant matter, any individual Defendant sued in their official capacity for monetary
damages (Dr. Krak, Superintendent Folino, Administrator Vihlidal, Secretary Wetzel, Officer
Varner, Dr. Balas, and Administrator Stanishefski) are immune from suit under the Eleventh
Amendment. Hafer v. Melo, 502 U.S. 21, 25 (1991) (internal quotation marks omitted). Thus, the
official capacity claims for damages against those defendants is dismissed with prejudice, as
amendment would be futile.4 Fletcher-Harlee Corp., 482 F.3d at 251.
Likewise, Defendants are correct that the Bureau of Health Care Services is an arm of the
Pennsylvania Department of Corrections which is a state agency and any claim for damages
against the Bureau of Health Care Services is barred by the Eleventh Amendment. See e.g.,
Montilla v. Prison Health Services, Inc., CIV.A. 11-2218, 2011 WL 4467712, at *6 (E.D. Pa. Sept.
23, 2011), aff'd, 457 Fed. Appx. 212 (3d Cir. 2012) (unpublished); Edelman v. Jordan, 415 U.S.
651, 663 (1974). Thus, all claims for damages against the Bureau of Health Care Services are
dismissed with prejudice, as amendment would be futile.5 Fletcher-Harlee Corp., 482 F.3d at 251.
Plaintiff responds that because he alleged a claim for injunctive relief, the Eleventh
Amendment does not apply. Courts have read a limited exception into the Eleventh Amendment
for those actions seeking prospective injunctive relief. Ex parte Young, 209 U.S 1232 (1908).
Plaintiff’s claim for injunctive relief is asserted exclusively against Secretary Wetzel and seeks “a
preliminary and permanent injunction order [that] defendant Wetzel revise the 13.2.1 policy to
reflect that inmates shall not be denied appropriately adequate health care by any health care staff

4

These claims include Counts I through VII insofar as Plaintiff is asserting official capacities
claims against them. Plaintiff’s claims made against these Defendants in their individual capacity
remain.
All of Plaintiff’s claims against the Bureau of Health Care Services are dismissed with
prejudice.
5

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or [illegible] from receiving said care by any personnel especially in cases of the inmate needing
emergency care due to pain ect.[sic]. Also that each facility will be operating to this standard.”
Pl.’s Am. Compl. (ECF No. 35) at p. 24.
Because Defendants did not raise the issue of Plaintiff’s request for injunctive relief against
Secretary Wetzel in his individual capacity and how that applies to Eleventh Amendment
immunity, the court finds that this issue is not fully briefed and to the extent that Defendant Wetzel
sought dismissal of Plaintiff’s claim for injunctive relief against Defendant Wetzel in his individual
capacity under Eleventh Amendment immunity, the motion is denied in that respect.
V.

CONCLUSION
Based on the foregoing, Defendants’ motion is granted in part and denied in part.

Defendants’ motion is granted insofar as all claims made against individual defendants in their
official capacities (Claims I through VII against Defendants Dr. Krak, Superintendent Folino,
Administrator Vihlidal, Secretary Wetzel, Officer Varner, Dr. Balas, and Administrator
Stanishefiski) are dismissed with prejudice. Those claims remain against those Defendants in their
individual capacities. Defendants’ motion is further granted insofar as all claims made against the
Bureau of Health Care Services are dismissed with prejudice. Defendants’ motion is denied in all
other respects.
An appropriate Order follows.

Dated: November 8, 2018

By the Court,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge

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cc:

KHALIL HAMMOND
KC 9993
SCI Fayette
48 Overlook Drive
LaBelle, PA 15450
All counsel of record via CM/ECF electronic filing

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