KOKINDA v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 7

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 9/20/16. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON KOKINDA,

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Plaintiff,

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Civil Action No. 16-1303

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V.

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PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, DR. BYUNGHAK
JIN, CHISTOPHER H. OPPMAN,
PRISON HEAL TH SERVICES, INC.,
PATRICIA STOVER, CORIZON, INC.,
PRISON HEALH SERVICES
CORRECTIONAL CARE, INC., IRMA
VIHLIDAL, MARK DIALESANDRO,
DSCS, SUPERINTENDENT ROBERT
GILMORE, JOHN DOE #1, CHCA,
JANE DOE #1,

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United States District Judge
Mark R. Hornak

United States Magistrate Judge
Cynthia Reed Eddy

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Defendants.

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MEMORANDUM OPINION

Mark R. Hornak, United States District Judge.

This matter is before the Court on pro se Plaintiff Jason Kokinda's objections to the
September 6, 2016, Report and Recommendation ("R&R") of Magistrate Judge Cynthia Reed
Eddy, which recommended that all claims in his complaint, except for the Eighth Amendment
claim, be dismissed pre-service pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim
upon which relief can be granted. (ECF No. 5). The R&R further recommended that Plaintiff be
afforded an opportunity to amend his complaint. The R&R sets forth an account of the factual
background derived from the allegations of the Complaint, and also recounts previous similar
actions brought by Plaintiff arising out of identical events at other Pennsylvania state prisons.
Plaintiff was served with the R&R at his listed address and was advised that objections to the

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R&R were due fourteen (14) days after service. He timely filed objections to the R&R on
September 14, 2016. (ECF Nos. 6). 1
In resolving a party's objections, the Court conducts a de nova review of any part of the
R&R that has been properly objected to. Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(l). The
Court may accept, reject, or modify the recommended disposition, as well as receive further
evidence or return the matter to the magistrate judge with instructions. Id. As noted in the R&R,
the Court has a statutory obligation to "screen" the Plaintiffs pro se, in forma pauperis
complaint in order to assure itself that the complaint asserts one or more claims that can be
litigated in this Court. Under 28 U.S.C. §1915(e)(2), the court "shall dismiss the case" if it
determines that the action is frivolous or malicious," "fails to state a claim on which relief may
be granted," 2 or "seeks monetary relief against a defendant who is immune from such relief."
Upon careful review of the complaint, the R&R, and the objections, the Court concludes that the
objections do not undermine the magistrate judge's recommended disposition.
In sum and substance, Plaintiff alleges that while he was in custody at the Pennsylvania
state prison SCI-Greene, he was fed a diet that had an unacceptable amount of soy in the food he
was served. He says that this led to various deleterious effects on him, including, among other
things, exacerbation of his obsessive-compulsive disorder. He wants money damages against
each of the Defendants, along with declaratory relief. His Complaint notes that he is no longer in
physical custody of the Commonwealth of Pennsylvania.

The Court notes that Plaintiff is a registered user of ECF and that he filed these objections
electronically. Because Plaintiffs e-mail address is listed on the docket, this Order, as well as all future
Orders and notices, will only be served upon Plaintiff electronically, and not through the mail.
When analyzing a pro se defendant's failure to state a claim at the § 1915(e )(2) screening stage, "the
standard of review is the same as under Fed.R.Civ.P. 12(b)(6)." Rushing v. Pennsylvania, 637 Fed.
App'x 55, 57 (3d Cir. 2016).

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Many portions of Plaintiffs objections are entirely without merit. For example, Plaintiff
contends that the R&R erred in recommending dismissal of the official capacity claims against
the individual Defendants based on Eleventh Amendment immunity. (Obj. at pp. 1-4, ECF No.
6). Plaintiff asserts that it is premature to dismiss the official capacity claims against the DOC
employee Defendants because there was a contract between the DOC and Corizon, and thus,
those individuals may have been "constructively acting as employees of Corizon, if related to
medical claims." (Id. at 2). Additionally, Plaintiff complains that the R&R neglected to consider
that he is also seeking to hold Corizon liable pursuant to Monell v. Dept. of Soc. Svcs. of City of
NY, 436 U.S. 658 (1978). According to Plaintiff, his Monell claim operates as an exception to

Eleventh Amendment immunity. This is simply untrue. Although a state contractor such as
Corizon can be found liable under a Monell claim, see Estate of Thomas v. Fayette Cty., _ F.
Supp.3d _, 2016 WL 3639887, *17 (W.D. Pa. 2017), this does not change the fact that an
official capacity claim against a state employee is considered and treated as a claim against the
state entity itself, see Kentucky v. Graham, 473 U.S. 159, 166 (1.985).

Therefore, as the R&R

correctly noted, "those prison official defendants sued in their official capacities are immune
from claims for monetary damages and retroactive equitable relief." (R&R at 7, ECF No. 5).
Moreover, as a practical matter, because Plaintiff names Corizon and Prison Health Services,
Inc. as Defendants in this action with regard to his Monell claim, it is unnecessary and
duplicative to pursue official capacity claims against any of the individual Defendants, regardless
of whether they are state employees or private medical contractors.
Plaintiff is also incorrect in his objections that he has alleged that he is a member of a
suspect class. (Obj. at pp. 5-10). He concedes that the R&R correctly stated that neither persons
with mental illnesses nor persons with food allergies are suspect classes. (R&R at 8-9) (citing

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Lawson v. Wollenhaupt, 2004 WL 491014, *7 (D. Conn. 2004) (food allergy); Ismail v. Ford,
2014 WL 1681993, *5 (C.D. Cal. 2014) (obsessive-compulsive disorder or other psychological
or emotional condition); Carter v. Mich. D.O.C., 2013 WL 3270909, *13 (W.D. Mich. 2013)
(disabled persons); Smith v. Fischer, 2009 WL 632890, *10 n. 29 (N.D. N.Y. 2009) (mentally ill
and the mentally handicapped)). Nevertheless, without any legal support, Plaintiff contends that
"the combination of: persons suffering from mental illness, with food allergies, whose civil
rights are being violated on the basis of them being most vulnerable" constitute a suspect class.
Again, this is simply not true. There is no case law supporting the conclusion that, despite not
individually comprising a suspect class, the combination of these designations constitutes a
suspect class. As such, Plaintiffs objections claiming that he is a member of a protected or
suspect class based on a combination of these designations is without merit, and thus, he has not
demonstrated that the R&R's recommended disposition as to his claims brought pursuant to 42
U.S.C. §§ 1985(3) and 1986 was improper. 3 See Griffin v. Breckenridge, 403 U.S. 88 (1971);
Jackson v. Gordon, 145 Fed. App'x 774, 776 (3d Cir. 2005).
As to Plaintiff's ADA claim and his equal protection claim under the Fourteenth
Amendment, the R&R correctly determined that the complaint failed to allege sufficient facts
that the denial of his special diet was discriminatory. (R&R at 10-14 ). In Plaintiff's objections,
he acknowledges that his complaint is deficient in this regard, and seeks to amend his complaint.
See (Obj. at p. 8). He now claims, for the first time, "that some prisoners without mental illness
did receive the No Soy diet." (Id.).

However, Plaintiff asserts in his objections that other

prisoners with food allergies who were on the "mental health" block were denied special diets,
and that said denial was "on account of [their] mental illness[es]." (Id.). The Court agrees that if
It is also worth noting that Plaintiff did not object to the R&R's other basis for dismissing the §
1985(3) claim - failure to sufficiently allege facts pertaining to an agreement or understanding among the
Defendants to discriminate against Plaintiff.

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the complaint is amended to reflect these assertions, the ADA and equal protection claims would
be sufficient to withstand this Court's obligatory pre-service screening review. 4

Therefore,

Plaintiff will be granted leave to amend his complaint in order to correct said deficiencies
outlined in the R&R and this Opinion.
An appropriate Order will issue.

Mark R. Hornak
United States District Judge
Dated:
cc:

September~, 2016
JASON KOKINDA
(served electronically at [e-mail])

However, Plaintiff's argument in his objections that the R&R erred when assessing his equal
protection claim in failing to apply strict scrutiny - regardless of whether he falls within a protected class
- because he was deprived of a fundamental right is without merit. Initially, the Court notes that
Plaintiff's complaint contains no allegations referencing a fundamental right. It was therefore not error
for the R&R to not discuss allegations that do not exist. Additionally, although being deprived of a
special diet may implicate Eighth Amendment concerns, Plaintiff is incorrect that such an Eighth
Amendment violation, by itself, necessarily translates into a deprivation of a fundamental right. See
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 & n. 3 (1976) (collecting examples of
recognized fundamental rights). Moreover, even if this were a fundamental right, Plaintiff is not entitled
to strict scrutiny review. While a prisoner does not forfeit all constitutional protections by virtue of being
incarcerated, Bell v. Wolfish, 441 U.S. 520, 545 (1979), he "retains [only] those rights that are not
inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections
system." Pell v. Procunier, 417 U.S. 817, 822-23 (1974); DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000)
(en benc). In situations in which the denial of a special diet impacts a prisoner's fundamental right, such
as the right to free exercise under the First Amendment, courts only "inquire whether there is a rational
connection between the prison's refusal to give [the inmate] his requested diet and a legitimate
penological interest." DeHart v. Horn, 227 F.3d at 52, 61 (distinguishing between the state depriving an
individual of a fundamental right "in the context of society at large," which is governed by strict scrutiny
review, and the state treating similarly situated inmates differently with regard to a fundamental right in
the context of the prison setting, which is governed by rational basis review). Thus, Plaintiff's adamant
contention that he is entitled to strict scrutiny review because he was deprived of a fundamental right is
without merit. And because, as discussed above, Plaintiff has not alleged well-pied facts that he is a
member of a suspect or quasi-suspect class, to the extent that Plaintiff amends his complaint to reflect that
he was discriminated against as a result of his status of being an individual with a mental illness who has
a food allergy, this equal protection claim will be assessed under rational basis review, i.e., it will be
"presumed to be valid and will be upheld if it is 'rationally related to a legitimate state interest'" Tillman
v. Lebanon Cty. Corr. Fae., 221 F.3d 410, 423 (3d Cir. 2000).
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