report & recommendation i. recommendation

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JASON KOKINDA,

Plaintiff,

v.

PENNSYLVANIA DOC, et al.,

Defendants.

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Civil Action No. 17-cv-217

United States District Judge

Mark R. Hornak

United States Magistrate Judge

Cynthia Reed Eddy

REPORT & RECOMMENDATION

Cynthia Reed Eddy, United States Magistrate Judge.

I. RECOMMENDATION

For the reasons that follow, and pursuant to 28 U.S.C. § 1915(e)(2), it is respectfully

recommended that the Court sua sponte dismiss several claims and the majority of the

Defendants named in Plaintiff Jason Kokinda’s pro se complaint. (ECF No. 3). It is further

recommended that Plaintiff be denied leave to file an amended complaint, and that the complaint,

as modified herein, be served on the remaining Defendants.

II. REPORT

A. Background

Plaintiff Jason Kokinda is allegedly mentally ill and a former state prisoner, who, in

addition to pursuing the present action, is currently pursuing several other pro se civil rights

actions in this Court, all of which have been assigned to the undersigned for pretrial

proceedings.1 In this most recent action, Plaintiff claims that while he was confined at SCI-

1 See 2:16-cv-5; 2:16-cv-1303; 2:16-cv-1457; 2:16-cv-1580. Further, he abandoned a

substantially similar action that he initiated while a prisoner before his release in order to avoid

Case 2:17-cv-00217-MRH-CRE Document 6 Filed 03/07/17 of 24

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Greene, he suffered several violations of his constitutional and statutory rights during the time

period of February 20, 2015 to March 21, 2015. He attempts to sue approximately sixty

Defendants, seeking $50 million in compensatory damages and $150 million in punitive

damages. On the one hand, the complaint appears to contain certain factual allegations against a

small group of the Defendants that are sufficient to state a claim relating to unlawful retaliation

and various unconstitutional conditions of confinement imposed on a mentally ill prisoner.

However, the complaint is also replete with confusing, far-sweeping, and implausible conspiracy

theories that fail to state a claim as a matter of law, and it contains many other legal deficiencies.

When accepting the well-pleaded facts in the complaint as true and drawing all reasonable

inferences in the light most favorable to Plaintiff, the allegations in the complaint are as follows.

On February 17, 2015, Plaintiff filed a grievance explaining how the Pennsylvania DOC

was misappropriating federal funds in violation of 18 U.S.C. § 666, a criminal statute relating to

theft or bribery concerning programs that receive federal funds. In this grievance, Plaintiff

asserted that twenty individuals “were actively engaged in a conspiracy to perpetually violate the

Eighth and Fourteenth Amendments … by continuing to abuse and ignore the health concerns of

mentally ill prisoners.” He accused these individuals of taking federal funds that were reserved

for mentally ill prisoners and using them for other purposes. Of the twenty individuals identified

in the grievance, Plaintiff has attempted to sue nineteen of them in this action: Secretary of

Corrections John E. Wetzel, Patricia Stover, Christopher H. Oppman, James Barnacle,2 Susan

paying a partial initial filing fee See 2:15-cv-179. He argues in the case sub judice that many of

the Defendants’ alleged retaliatory actions were motivated by his pursuit of this now-abandoned

case during his confinement at SCI-Greene. Additionally, there is another action that is currently

stayed and administratively closed in this Court while he seeks reconsideration of a decision

from the United States Court of Appeals for the Third Circuit. See 2:15-cv-1593. 2 Barnacle is not listed as Defendant in the beginning of the complaint, but is included in the

demand for relief.


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McNaughton, Joanna Torma, Dr. Kristofer “Bret” Bucklen, Harry Jones, Theron Perez, former

Governor Tom Corbett, current Governor Tom Wolf, Deputy Michael Zaken, SCI-Greene

Deputy Superintendent for Centralized Services (“DSCS”) Mark DiAlesandro, SCI-Greene

Superintendent Robert Gilmore, Susan Cowan, Shelly Mankey, Tracy Shreve, Ms. Gasker, and

Dr. Pillai.3

Shortly thereafter, on February 20, 2015, during a law library session, Plaintiff circulated

several copies of an affidavit that he drafted to his fellow-inmates for purposes of obtaining their

signatures. The affidavit “detailed succinctly, the abuses of the prison that were ongoing despite

the supposed reforms made by D.O.C. to comply with D.O.J. SCI-Cresson mental health abuse

report.” Plaintiff planned to use the affidavits to support the factual statements that he was

making against the Pennsylvania DOC and “its contracted corporate alliances” in his then-

pending federal civil litigation that was filed in this Court at 2:15-cv-179.4 Nearly a dozen

inmates signed the affidavits during that law library session. However, according to Plaintiff,

one of those inmates turned on Plaintiff and informed an SCI-Greene correctional officer,

Defendant C.O. Pegram, that inmates were signing the affidavits.

C.O. Pegram then informed Defendant Sergeant Gibson of the situation. Sergeant

Gibson sent a different undercover inmate to obtain a copy of the affidavit. After Sergeant

Gibson read the content of the affidavit, he “felt it was a threat that created civil liability,” which

had to be “immediately subverted.” C.O. Pegram warned the first informant to retrieve his

signed copy of the affidavit from Plaintiff to avoid being implicated in the impending security

3 Shawn Kephart is the individual who was named in the grievance but not named as a

Defendant in this lawsuit. 4 As explained in note 1, supra, this is the lawsuit that Plaintiff abandoned. He later asserted

the same allegations in a different case after his release from prison to avoid being subject to the

PLRA’s filing fee requirement for inmates proceeding in forma pauperis.


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search. Minutes after that informant retrieved his signed affidavit from Plaintiff, Defendant C.O.

Sanders and an unknown officer of the security search team went to Plaintiff’s cell on the mental

health block, placed Plaintiff in handcuffs, and confiscated the affidavits. They also conducted a

humiliating strip search of Plaintiff on video camera.

Plaintiff was mistakenly transferred to the “ordinary” RHU at first, and hours later, he

was taken to the mental health block where he was held under administrative investigation based

on “phony misconduct charges.”5 The correctional officers confiscated one master copy of the

petition entitled “Sworn Certification,” one edited copy of the master petition, eight blank

petitions, seven signed petitions, and one typewriter ribbon.

At Plaintiff’s hearing on the misconduct charges, the hearing examiner, Defendant L.S.

Kerns-Bar, refused to allow the law librarian, Defendant Mr. Gardner, to be a witness, who

Plaintiff claims would have provided favorable testimony. Although Defendant Kerns-Bar

allegedly knew that the affidavits that Plaintiff had circulated were lawful, she nevertheless

found Plaintiff guilty on his misconduct charges. She sentenced Plaintiff to thirty days in cell

restriction, “in part subsumed by the nineteen days he had already spent in the RHU.” The

complaint also alleges that Defendant Gardner “did not want to get involved outside of

proceedings pursuant to his response in [a] Request Slip” that Plaintiff had sent to Defendants

Superintendent Gilmore and DSCS DiAlesandro. This request slip advised Superintendent

Gilmore and DSCS DiAlesandro of Plaintiff’s soy allergy and of his mental and physical

suffering in the RHU. It also warned Superintendent Gilmore and DSCS DiAlesandro that they

“would face Divine Retribution for their intent to murder him, and that they should just make

their intents clear and come to his cell with full premeditation.”

5 Said charges included: unauthorized activity; circulating a petition; possession of contraband

– property of another; and possession of any item not authorized for retention.


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Plaintiff appealed Defendant Kerns-Bar’s decision on the misconduct charges to

Superintendent Gilmore, who refused to address the issues raised by Plaintiff, denied the appeal,

and refused to return the confiscated items.

Plaintiff was held in the RHU until March 10, 2015.6 During his confinement in the

RHU, Plaintiff claims he was starved because he did not have access to the commissary, which

he ordinarily relied on to feed himself due to his soy allergy. He was suffering from psychosis

and asserts that “the staff [was] intentionally doing everything possible to exacerbate his mental

illness.” Plaintiff alleges that his injuries were “severely compounded in the RHU, where his

mental and physical health quickly deteriorated.”

He believed that the food he was being served was “poisoned with some sort of mind

numbing/chemical castration drugs (partly based upon actual observations, that could also be

explained by the high sodium and preservative content).” He “suffer[ed] sharp abdominal pangs,

dry heaves, and the severe symptoms of hypertension; possibly from high sodium, soy, and

preservative content combined.”

“During the ten most severe days [in the RHU, Plaintiff] was unable to eat anything,

except for possibly a piece of fruit or bread each day, as necessary to keep his head clear to

record the violations (prevent his death); he had become extremely weak and tired, and was

virtually crippled.” “His nervous system had shut down from depletion of nutrients, [such] that

he was hardly able to even write or walk; with all movement becoming extremely painful and

exhausting.” Plaintiff “blacked out and fell, and then was barely able to hopple at all to see the

nightshift” RHU nurse, Defendant Mills. Plaintiff informed Defendant Mills that Defendants

were “falsely marking that [Plaintiff] had eaten every meal,” even though he had not. On

6 The complaint states that he was held in the RHU until March 2014, not 2015. (Compl. at ¶

11). When reading the complaint as a whole, this appears to be a typographical error.


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February 24, 2015, Plaintiff immediately requested to see Defendant Waula, a prison nurse, to

obtain a soy-free diet, but said request was denied.7 Plaintiff was told “that he could survive on

just the tiny portions of fruit and vegetables.”

Plaintiff was able to contact his mother, who in turn contacted the Central Office

administrative department via e-mail and also spoke to Defendant Gasker, the block

psychologist, “over the phone, trying to get info and to help her son.” Plaintiff’s mother also

advised Superintendent Gilmore that Plaintiff “has a soy allergy and could not eat the prison

food, and it therefore wasn’t a matter of choice.” Nevertheless, Superintendent Gilmore

allegedly told Plaintiff’s mother that Plaintiff “was a grown man, and could decide himself if he

wanted to starve himself or not.” Plaintiff’s mother “was also told, that they would simply insert

a feeding tube down [Plaintiff’s] throat if his health deteriorated enough; at a certain point.”

Plaintiff interpreted this statement from Superintendent Gilmore as a “veiled threat to murder

[Plaintiff].”

On March 9, 2015, Plaintiff sent a sick call slip to Defendant Waula, requesting a weight

check. He accuses Defendant Waula of “rigg[ing] the cheap dial scale so that it would read

much higher (178 lbs.) than [what] he actually weighed (130 lbs.).” The complaint asserts that

Defendant Waula did this to “cover up the actual damage being done to [Plaintiff’s] health,”

since he normally weighed between 210 – 215 lbs.

When Plaintiff was released from the RHU on March 10, 2015, he learned that the staff at

SCI-Greene “had threatened to lock up any prisoners in the RHU, who refused to sign a

statement recounting the assertions of the affidavit” because the affidavit “articulates criminal

theories against the officials.” Plaintiff also claims that after he was released from the RHU, the

7 It is unclear in the complaint whether Defendant Mills or Waula denied this request.


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Central Office knew Plaintiff would be filing the present lawsuit. Therefore, in anticipation of

this lawsuit, the Central Office promptly changed its policy regarding unauthorized group

activity, circulating petitions, and automatically holding mentally ill prisoners in immediate

investigation in the RHU.

Further, Plaintiff alleges that while he was being held in the RHU, his cell was searched

and that many items were confiscated and stolen. Specifically, he alleges that Sergeant Gibson

and the security team stole and/or destroyed several of Plaintiff’s religious artifacts.

Additionally, Plaintiff’s criminal case file, which he claims he needed to challenge his

underlying conviction, was stolen while he was in the RHU.

The rest of the allegations in the complaint largely consist of conclusory, implausible,

and patently frivolous conspiracy theories.

Plaintiff suspects that testosterone blockers or testosterone lowering agents were secretly

added to the food at SCI-Greene for purposes of institutionalizing, sedating, and instilling denial

in the prisoners. He reaches this conclusion based on his observations of other inmates, together

with the fact that Plaintiff used to be a fast runner but was not a fast runner in jail, and because

his hairline began to recede within one year of his confinement. The complaint also asserts that

former Pennsylvania Attorney General Kathleen Kane conspired with former Pennsylvania

Governor Tom Corbett, Senior Deputy Attorney General William R. Stoycos, Pennsylvania

DOC Secretary Wetzel, and SCI-Greene Superintendent Gilmore “to fabricate an incident that

would lock [Plaintiff] in the RHU and force him to starve or eat the prison food” for purposes of

deflating and interfering with the allegations in his then-pending civil lawsuit at 2:15-cv-179.

Plaintiff spectulates that members within SCI-Greene carried out the plan to fabricate the

incident to make sure Plaintiff was thrown in the RHU: “Through the presumed chain of


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command,” Superintendent Gilmore instructed DSCS DiAlesandro to have Deputy Michael

Zaken notify Shelly Mankey and Susan Cowan “of the need to find some segway that would

work to hold [Plainitff] in the RHU for theft of case-file.” These Defendants “began applying

pressure onto [Plaintiff] by putting everything he said and did under hyperscrutiny,” although

they were initially unable “to fabricate any serious incident.” But when Plaintiff filed the

grievance and obtained witness signatures for his affidavits, this “became the lynchpin for the

D.O.C. to take more aggressive retaliatory action.” As such, without any supporting facts,

Plaintiff asserts that Defendants conspired to hold Plaintiff in the RHU based on the “phony

misconduct charges” in order to force Plaintiff to eat soy products to try to defeat his then-

pending civil lawsuit, and so that Plaintiff’s criminal case file could be stolen from Plaintiff’s

cell.

The majority of the conspiracies identified in the complaint involve the theft of Plaintiff’s

criminal case file from his cell while he was confined in the RHU, which Plaintiff claims was

done for purposes of obstructing his ability to have his wrongful conviction overturned. Plaintiff

contends that many separate events, including events that occurred years before his case file

went missing, combined to form this conspiracy. According to Plaintiff, this conspiracy involves

former Governor Corbett, former Attorney General Kathleen Kane and other members of the

Office of Attorney General, thirteen state and federal trial and appellate judges, and many others

involved in his underlying criminal proceedings or confinement at SCI-Greene. Plaintiff asserts

that in every stage of his criminal proceedings, starting at the trial court level and all the way

through the state and federal review, all of these individuals conspired to act as one “giant

Goliath adversary” to make sure Plaintiff was convicted and was obstructed from overturning his

conviction, with assurances that the proof of their unlawful conspiracies (the criminal case file)


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would later be stolen “in order to give confidence to the officials that they will not be held

responsible based on the indelible records of corruption; pursuant to the [OAG’s]

unconstitutional ‘win at all costs policy.’” The Court will now attempt to discern and articulate

Plaintiff’s incomprehensible conspiracy theories involving the theft of his case file.

The complaint alleges that this conspiracy dates back to when he pleaded guilty but

mentally ill in his underlying criminal proceedings, which occurred in 2009.8 Plaintiff contends

that Defendants Dennis G. Charles (his criminal defense attorney), Doctors Datilio and Sadoff

(the mental health experts), Michael Sprow (the prosecutor), Judge Robert L. Steinberg (the trial

judge), and Agents David Frattare and Maureen Grace all conspired to convict Plaintiff “by

asserting a false defense.” This “false defense” apparently “accepted the prosecution’s case in

whole, while discrediting [Plaintiff’s] truthful assertions of innocence altogether, by claiming

that he was legally insane and therefore ‘imagined’ the objectively incontrovertible gravamen

facts which deprived Michael Sprow of a prima facie case.” Plaintiff asserts that this conspiracy

is somehow connected to the loss of his case file because several years later, Plaintiff suspects

that Defendants Charles and Stoycos “coordinated the false transmission of the original case-

file” when Plaintiff was in the RHU in February and March 2015 on the misconduct charges.

Specifically, Plaintiff alleges that the file was sent in a Fed-Ex package and that unknown

members of the intake department at SCI-Greene disposed of it. Although there are protocols

requiring that all mail to prisoners in the RHU be “signed for,” Plaintiff thinks that the log book

was manipulated and contends that there is proof that the intake department disposed of this case

file.

Plaintiff contends that Defendant Stoycos, in addition to conspiring with Plaintiff’s

8 https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-39-CR-

0004541-2007; see also Com. v. Kokinda, 2013 WL 11248504 (Pa. Super. 2013).


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criminal defense attorney, also conspired with former Attorney General Kathleen Kane and

Kane’s twin sister to “coordinate the case-file theft and disposal.” They did this because when

Kane appointed her twin sister, Defendant Ellen Granaham, to head the Attorney General’s Child

Predator Unit, they made it “a high priority to obstruct [Plaintiff] from overturning his wrongful

conviction.”

Furthermore, according to the complaint, former Pennsylvania Governor Tom Corbett

was a major ringleader in the conspiracy to have the criminal case file stolen. Plaintiff believes

that Governor Corbett needed to make sure that Plaintiff was prevented from having his criminal

conviction overturned because Governor Corbett had “invested so much political stock in

[Plaintiff’s] conviction” when he ran for office, including the use of Plaintiff’s mugshot “as

demagogue propaganda” during his campaign. As a result, Plaintiff claims Governor Corbett

conspired separately with the panel of the Pennsylvania Superior Court assigned to review

Plaintiff’s conviction, the Pennsylvania Supreme Court Justices, and the federal United States

Magistrate Judge and United States District Judge assigned to Plaintiff’s habeas petition.

Plaintiff contends that the Honorable Correale Stevens, who is currently a Senior Judge

on the Pennsylvania Superior Court, served as the conduit for both conspiracies between

Governor Corbett and the Pennsylvania Superior and Supreme Courts. Plaintiff reaches this

conclusion based on the fact that Judge Stevens was appointed by Governor Corbett in 2013 to

temporarily serve on the Supreme Court until January 2016. Plaintiff alleges that “Tom Corbett

conspired with Correale Stevens and the panel judges of the Superior Court, Jack Panella, Sallie

Updyke Mundy, and James J. Fitzgerald, III, to backdate and fabricate [the] judgment order to

evade merits review entirely.” Then, Plaintiff contends, “Tom Corbett [] conspired with

Correale Stevens and the Pennsylvania Supreme Court [J]ustices, Seamus McCaffery, Michael


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Eakin, Thomas Saylor, Max Baer, Ronald D. Castille, and Debra Todd” to “affirm the timebar

that the Superior Court panel had fabricated to evade review; by not sending [Plaintiff] timely

notice of [the] Judgment Order, and then maliciously refusing to reinstate his right to

reconsideration and appeal nunc pro tunc.” The Court may take judicial notice that the relevant

Superior Court decisions occurred in 2013 and 2014,9 and that the relevant Supreme Court

decisions occurred in 2014.10

Additionally, Plaintiff subsequently sought reconsideration of the

Supreme Court’s decisions, including a request to exercise its King’s Bench powers,11

and

Plaintiff is actively pursuing various appeals in both the Superior Court12

and Commonwealth

Court.13

Plaintiff asserts that Governor Corbett also corrupted the federal judges assigned to

review his federal habeas corpus proceedings, United States Magistrate Judge Lynee A. Sitarski

and United States District Judge Jan E. Dubois. According to Plaintiff, these federal judges

participated in the conspiracy to have the case file stolen “so that they [could] more easily

explain away [Plaintiff’s] right to relief with sophistry, by disposing of crucial evidence involved

in the question of relief.”

Plaintiff’s belief that all of these judges conspired against him is “based on how

egregiously malicious they acted on the record; and the political influence of high profile persons

liable to [Plaintiff] should he vindicate himself.” Plaintiff contends that the “proof” and

“evidence” of the conspiracy “is how all of the key officials who helped Corbett, obtain and

affirm the wrongful conviction were rewarded” through promotions:

9 See https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=2687+EDA+2012.

10 See https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=57+MM+2014.

11 See https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=76+MM+2014 and

https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=140+MM+2015. 12

See https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=3667+EDA+2016. 13

See https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=40+CD+2016.


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Michael Sprow promoted immediately after obtaining unlawfully

induced plea … by Corbett, David Frattare recommended for a

better job after fabricating sting, Correale Sevens promoted to

Pennsylvania Supreme Court at time of appeals; Dennis G. Charles

given his first precedential victory in Superior Court on the very

Andre Saphira case he openly stated preoccupation with during the

pendency of Mr. Kokinda’s trial, Sallie Updyke Mundy appointed

by Tom Wolf to the Pennsylvania Supreme Court.

However, Plaintiff alleges no facts to connect any of these events to the conspiracies he asserts in

his complaint.

B. Legal Standard

As Plaintiff is proceeding in forma pauperis in this action, (ECF No. 2), this Court must

screen and dismiss his complaint if it is frivolous or malicious, fails to state a claim on which

relief may be granted, or seeks monetary relief against a defendant who is immune from such

relief. See 28 U.S.C. § 1915(e)(2)(B). In determining whether the complaint fails to state a

claim on which relief may be granted, we apply the same familiar standard that is applicable to

Rule 12(b)(6) motions to dismiss. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Thus, a

complaint does not state a claim if, when “accepting all well-pleaded allegations in the complaint

as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff’s

claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 88 (3d Cir.

2011). At this stage of the proceedings, a court may only consider “the complaint, exhibits

attached to the complaint, matters of public record, as well as undisputedly authentic documents

if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010).

Additionally, because Plaintiff is proceeding pro se in this action, his filings must be

liberally construed and held to less stringent standards than formal pleadings drafted by lawyers.

Haines v. Kerner, 404 U.S. 519 (1972); Erickson v. Pardus, 551 U.S. 89, 94 (2007). If a pro se


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civil rights complaint is deficient, the court must give the plaintiff a chance to amend within a set

period of time, unless amendment would be inequitable or futile. Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002). In this context, “‘futility’ means that the complaint, as

amended, would fail to state a claim upon which relief could be granted.” Shane v. Fauver, 213

F.3d 113, 116 (3d Cir. 2000).

C. Discussion

At the outset, the Court finds that the following claims in the complaint should be

allowed to proceed: (1) First Amendment retaliation claim; (2) Eighth Amendment claim; (3)

Fourteenth Amendment procedural due process claim; (4) Fourteenth Amendment equal

protection claim under a “class of one” theory;14

and (5) Americans with Disabilities Act claim,15

and that the following Defendants should remain in this case: Pennsylvania Department of

Corrections,16

C.O. Pegram, Sergeant Gibson, C.O. Sanders, Kerns-Bar, Superintendent

Gilmore, RHU Nurse K. Mills, and Nurse Elaine Waula. These are the only Defendants named

in the complaint that arguably had any personal involvement in the alleged constitutional and

statutory violations. See Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005) (“In order

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As explained below, Plaintiff’s contention that he belongs to a suspect or quasi-suspect class

is without merit. Therefore, this claim should be analyzed under a “class of one” theory, where

“the state action is presumed to be valid and will be upheld if it is rationally related to a

legitimate state interest.” Tillman v. Lebanon Cty. Corr. Fac., 221 F.3d 410, 423 (3d Cir. 2000);

Kokinda v. Pa. D.O.C., Civ. No. 16-1303, 2016 WL 5137991, *2 n. 4 (W.D. Pa. Sept. 20, 2016). 15

To the extent that Plaintiff attempts to base this claim on “his filing of grievances and

litigation; with the prison targeting litigious prisoners for retaliations,” (Compl. at ¶ 100), the

Court notes that such allegations have nothing to do with a Title II ADA claim. See Brown v.

Deparlos, 492 Fed. App’x 211, 215 (3d Cir. 2012) (the plaintiff must allege, inter alia, that he

was excluded from services, programs, or activities by reason of his disability). Nevertheless,

because it appears that Plaintiff may also be claiming that he was discriminated against by reason

of his disability, the Court recommends not dismissing this claim at this time. 16

Although, as discussed below, the Pennsylvania DOC is entitled to Eleventh Amendment

immunity on all of Plaintiff’s §1983 claims, it is the appropriate Defendant with respect to the

Title II ADA claim. Matthews v. Pa. Dep’t of Corr., 613 Fed. App’x 163, 169-70 (3d Cir. 2015).

Thus, at this stage, the Pennsylvania DOC should remain a Defendant in this case.


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to prevail on a § 1983 claim against multiple defendants, a plaintiff must show that each

individual defendant violated his constitutional rights.”).

The Court notes that this is not an express determination that the complaint in fact states a

claim against all of these Defendants. Instead, it is simply a preliminary determination that has

been made prior to entertaining any arguments from these Defendants as to why they may feel

that dismissal is appropriate. Accordingly, once these Defendants are served with the complaint,

they will be permitted to file motions to dismiss under Rule 12(b)(6), if they so choose,

regardless of this preliminary determination.

For the reasons explained below, the Court recommends that all other claims and

Defendants be dismissed from this action, without leave to file an amended complaint.17

1. Eleventh Amendment Immunity

Pursuant to the Eleventh Amendment of the United States Constitution, all of Plaintiff’s §

1983 claims should be dismissed against the DOC and the individual Defendants employed by

the DOC who were acting in their official capacities. See Kokinda v. Pa. D.O.C., 663 Fed.

App’x 156, 159 & n. 10 (3d Cir. 2016) (citing Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297

F.3d 310, 323 (3d Cir. 2002) and Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000));

Kokinda v. Pa. D.O.C., Civ. No. 2:16-cv-1303, 2016 WL 5122033, *3-4 (W.D. Pa. 2016),

Report & Recommendation adopted by 2016 WL 5137991 (W.D. Pa. 2016); Kokinda v. Pa.

D.O.C., Civ. No. 2:16-cv-5, 2016 WL 7029385, *3-4 (W.D. Pa. Oct. 31, 2016), Report &

Recommendation adopted by 2016 WL 7031778 (W.D. Pa. Dec. 1, 2016). Because it would be

17

In his complaint, Plaintiff asserts several claims that this Court has already discussed and

dismissed in Plaintiff’s previous lawsuits. Thus, to the extent that this Court and/or the Court of

Appeals has previously addressed identical or substantially similar claims and determined that

they fail to state a claim, the Court will not repeat that analysis here, but instead will merely cite

to those decisions, which are incorporated as if fully set forth herein.


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futile to allow Plaintiff to amend these claims, they should be dismissed with prejudice.

2. Judicial Immunity

All of the judges that Plaintiff has tried to sue in this action are entitled to judicial

immunity. “A judicial officer in the performance of his duties has absolute immunity from suit

and will not be liable for his judicial acts.” Capogrosso v. The Supreme Court of New Jersey,

588 F.3d 180, 184 (3d Cir. 2009) (quoting Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006)).

“A judge will not be deprived of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority; rather he will be subject to liability only when he

acted ‘in the clear absence of all jurisdiction,’” id. (citations omitted), or where the challenged

conduct is not a judicial act, Mireless v. Waco, 502 U.S. 9, 11 (1991). “Judicial immunity

attaches even if the act was done in furtherance of a conspiracy.” Harvey v. Loftus, 505 Fed.

App’x 87, 90 (3d Cir. 2012) (citing Dennis v. Sparks, 449 U.S. 24, 26-27 (1980)).

The complaint asserts that the state and federal judges named therein participated in

“unofficial conduct” in a conspiracy “with corrupt criminal parties to physically injure or rob

[Plaintiff] who could ruin the judges[’] career[s] and/or have them tried for crimes of official

oppression.” (Compl. at ¶ 116). Plaintiff’s suspicion that these judges participated in a “violent

retaliation/theft” conspiracy in their non-judicial capacities is specifically “based on how

egregiously malicious they acted on the record” in their capacities as judges. Id. at ¶¶ 117, 120.

However, there are no well-pleaded allegations to support such implausible, unadorned

speculation that any of the judges named in the complaint took acts outside their judicial capacity

to have Plaintiff’s case file stolen during his confinement in state prison in order to prevent

Plaintiff from ruining their careers; and Plaintiff cannot sue these judges based on his belief that

their rulings were incorrect and/or malicious. Capogrosso, 588 F.3d at 184. Thus, all of the


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claims in the complaint against the following state and federal judges should be dismissed with

prejudice, as allowing amendment here would be futile: Robert L. Steinberg, Correale Stevens,

Jack Panella, James J. Fitzgerald, III, Sallie Updyke Mundy, Thomas Saylor, Max Baer, Debra

Todd, Seamus McCaffery, Michael Eakin, Ronald D. Castille, Jan E. DuBois, and Lynne A.

Sitarski,

3. Conspiracy Claims

Similarly, all of Plaintiff’s conspiracy theories should be dismissed. “[I]t is a

longstanding rule in the Third Circuit that a mere allegation … of conspiracy or collusion

without alleging the facts which constituted such conspiracy or collusion is a conclusion of law

and is insufficient [to state a claim].” Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991);

see also Capogrosso, 588 F.3d at 184-84 (a “judicial conspiracy” claim must include at least a

discernable factual basis to survive dismissal, and, absent specific supporting facts, a conspiracy

cannot be found from allegations of judicial error, ex parte communications, or adverse rulings).

None of Plaintiff’s allegations relating to any of the purported conspiracies that he has attempted

to plead in the complaint “rise above general allegations and conjecture.” Harvey, 505 Fed.

App’x at 90. Because all of these conspiracy theories are extremely conclusory and devoid of

factual detail, the Court should dismiss these claims. These claims are clearly frivolous, and if

given the opportunity to amend them, Plaintiff would still fail to provide the necessary

supporting detail, especially when considering that Plaintiff has been pursuing at least some of

these conspiracy theories for years.18

18

The Court may take judicial notice that a few years ago, Plaintiff sought a writ of mandamus

before the Court of Appeals for the Third Circuit “compelling Judges Jan E. Dubois and Lynne

A. Sitarski to recuse themselves from the consideration of his habeas petition, which [was]

pending before the Eastern District of Pennsylvania.” See In re Kokinda, 581 Fed. App’x 160,

160 (3d Cir. 2014). These are the same federal judges that he has attempted to sue in this case.


17

Moreover, consistent with this Court’s prior decisions in Plaintiff’s other cases, the §

1985(3) conspiracy claim should be dismissed because he does not allege any facts that he

belongs to a class within the meaning of § 1985(3). His contention that “mentally ill prisoners,”

“litigious prisoners,” or prisoners “exercising constitutional rights” are suspect classes is simply

without merit. See Kokinda, 663 Fed. App’x 159 & n. 13 (citing Bray v. Alexandria Women’s

Health Clinic, 506 U.S. 263, 269 (1993) and Farber v. City of Paterson, 440 F.3d 131, 137 (3d

Cir. 2006)); Kokinda, Civ. No. 2:16-cv-5, 2016 WL 7029385, at *8. Additionally, the § 1986

claim should be dismissed not only because it is dependent on an underlying violation of § 1985,

Rogin v. Bensalem Twp., 616 F.2d 680, 696-97 (3d Cir. 1980), but also because it is apparent

from the face of the complaint that it is untimely under the applicable one-year statute of

limitations. See 42 U.S.C. § 1986 (“But no action under the provisions of this section shall be

sustained which is not commenced within one year after the cause of action has accrued.”).

These deficiencies cannot be cured, and, accordingly, all of Plaintiff’s hyperbolic conspiracy

theories should be dismissed with prejudice.

Therefore, the following Defendants should be dismissed from this lawsuit with

prejudice, as the only allegations against them involve the deficient conspiracy theories: William

Like he does here, Plaintiff accused the judges of attempted murder and alleged they were

“biased against him, apparently in a web of corruption initiated by Governor Corbett, who he

claims is invested in Kokinda’s malicious prosecution for political reasons.” Id.; cf. (Compl. at ¶

120) (accusing the judges’ co-conspirators of almost murdering him and asserting that the judges

“attempted to put [his] life in danger; with the possibility of dying suddenly from even an

electrolyte imbalance”). The Court of Appeals aptly characterized Plaintiff’s accusations as

being “rich in conspiracy theories and hyperbole” but lacking in “specific facts in support of

such grave allegations,” discounting Plaintiff’s argument that his dissatisfaction with the

outcome of his various motions before the judges was evidence of their implicit corruption. Id. at

160-61. Although the standard applicable to a mandamus is substantially more difficult to

satisfy than Federal Rule of Civil Procedure 8’s notice pleading standard, the Court nevertheless

finds that this analysis applies to the present case, and confirms the conclusion that allowing

amendment of these claims would be futile.


18

R. Stoycos, Kathleen Kane, Ellen Granaham, Tom Wolf, Dennis G. Charles, Dr. Robert Sadoff,

Dr. Frank Datillio,19

David Frattare, Maureen Grace, Michael Alan Sprow, CO McCoy, and Tom

Corbett.

4. Access to Courts Claim

To the extent that Plaintiff is attempting to assert an “access to courts” claim, he has

failed to do so, as there are no facts whatsoever to support a conclusion that he was actually

pursuing a “nonfrivolous” or “arguable” underlying claim, or that he otherwise suffered an actual

injury from the loss of his case file. The Court has already addressed similar claims from

Plaintiff, where he argued that he was prevented from accessing the courts when he was seeking

nunc pro tunc relief before the panel of Superior Court Judges that he has tried to sue in this

case. See Kokinda, Civ. No. 2:16-cv-5, 2016 WL 7029385, at *5-6 & nn. 6, 7 (describing

Plaintiff’s continuous and repeated attempts to revive his dismissed PCRA petition through nunc

pro tunc applications and requests to “Remove False Judgment Order from Docket/Assign True

Panel,” and concluding that his “attempts to have the Superior Court reconsider its decision on

three different occasions after it affirmed dismissal of his PCRA petition were clearly without

merit”). The complaint does not describe an “underlying arguable claim well enough to show

that it is ‘more than hope,’” nor does it sufficiently “describe the ‘lost remedy.’” Monroe v.

Beard, 536 F.3d 198, 205-06 (3d Cir. 2008). Based on a review of the allegations of the

complaint, where Plaintiff’s legal challenges at this point appear to be that every court that issues

an unfavorable decision is necessarily caught up in a giant conspiracy to “backdate and fabricate

judgment order[s]” and destroy his case file at all costs without regard for the “possibility of

[Plaintiff] dying suddenly,” it is clear that Plaintiff cannot amend this claim to allege facts to

19

Dr. Datillio is not listed as a Defendant in the beginning of the complaint but is referred to as

a Defendant in the body of the complaint and in the prayer for relief.


19

demonstrate that he lost a nonfrivolous or arguable claim due to his case file being stolen. Thus,

this claim should be dismissed with prejudice.

5. Fourth Amendment Claim

Plaintiff asserts that Defendants violated the Fourth Amendment by “facilitat[ing] the

false seizure of [his] personal legal property without probable cause” from his cell while he was

being falsely held in the RHU on the misconduct charges. (Compl. at ¶ 80). This claim should

be dismissed because “the Fourth Amendment proscription against unreasonable searches and

seizures does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517,

526 (1984). As Plaintiff cannot cure the deficiencies of this claim, it should be dismissed with

prejudice.

6. Fifth Amendment Due Process Claim

Plaintiff’s Fifth Amendment procedural due process claim should be dismissed because,

in this context, “the Fifth Amendment [only] applies to actions of the federal government.” B &

G Const. Co. v. Dir., Office of Workers’ Comp. Programs, 662 F.3d 233, 246 n. 14 (3d Cir.

2011); Citizens for Health v. Leavitt, 428 F.3d 167, 178 n. 11 (3d Cir. 2005). It appears that the

only individuals named in the complaint who are members of the federal government are the two

federal judges that reviewed Plaintiff’s habeas case, who, as explained elsewhere, are entitled to

judicial immunity. As such, the complaint fails to state a claim under the Fifth Amendment, and

this claim should be dismissed with prejudice, as allowing amendment would be futile.

7. Personal Involvement

In order to state a claim against a state actor under § 1983, a plaintiff cannot base his

claim on a theory of respondeat superior; instead, he must show that each named defendant was

personally involved in the events or circumstances that give rise to the claim. See Rode v.


20

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Thus, if a defendant in a § 1983 action has

no personal involvement in the underlying constitutional violation, the plaintiff cannot hold that

defendant liable merely because the defendant is a supervisor. Ashcroft v. Iqbal, 556 U.S. 662,

676-77 (2009). Further, it is well-established that the filing of a grievance is not sufficient to

show the actual knowledge necessary for personal involvement. See Rode, 845 F.3d at 1208;

Mincy v. Chmielwski, 508 Fed. App’x. 99, 104 (3d Cir. 2014) (“[A]n officer’s review of, or

failure to investigate, an inmate’s grievances generally does not satisfy the requisite personal

involvement.”); Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006) (allegations that prison

officials and administrators responded inappropriately to an inmate's grievances do not establish

the personal involvement of the officials and administrators in the underlying deprivation).

“Similarly, [a] Plaintiff cannot impose liability against any of the Defendants based solely on his

or her involvement with his correspondence … and misconducts.” Alexander v. Fritch, 2010

WL 1257709, *16 (W.D. Pa. 2010).

Plaintiff inappropriately tries to sue several Defendants in this action based on nothing

more than the fact that they were mentioned in a grievance, failed to respond to Plaintiff’s

complaints after being sent a grievance or letter from Plaintiff, or did not issue a favorable

decision on a grievance or misconduct appeal that he filed. Aside from being mentioned in

Plaintiff’s February 17, 2015 grievance, see (Compl. at ¶ 19), there are no well-pleaded factual

allegations with respect to any of the following Defendants: John E. Wetzel, James Barnacle,

Susan McNaughton, Joanna Torma, Dr. Kristofer “Bret” Bucklen, Harry Jones, Theron Perez,

and Dr. Pillai.20

This pleading deficiency cannot be cured by amendment, and, therefore, these

20

The Court notes that the complaint also attempts to implicate Wetzel in the conspiracy “to

fabricate an incident that would lock [Plaintiff] in the RHU and force him to starve or eat the

prison food,” (Compl. at ¶ 37), but as discussed above, this conspiracy claim should be dismissed


21

Defendants should be dismissed with prejudice.

Plaintiff also mentioned Defendants Patricia Stover and Christopher H. Oppman in the

February 17, 2015 grievance, with an additional allegation that they are liable for supervisory

liability because of their “adherence to [the] secret unconditional policy of greed.” (Compl. at ¶¶

19, 84, 85). Likewise, Plaintiff contends that the following Defendants are liable based on

nothing more than an allegation that they are liable for supervisory liability for “adherence to

[the] secret unconstitutional policy of greed”: Dr. Paul Noel, Lynn Patrone, Dr. Robert Marsh,

and Irma Vihlidal. Id. at ¶¶ 83, 89.21

Because there are no other allegations against any of these

Defendants and it is apparent that Plaintiff is attempting to hold these Defendants liable based on

the acts of others, all of the Defendants mentioned in this paragraph should be dismissed with

prejudice.

The Complaint speculates that Defendants DSCS DiAlesandro, Deputy Michael Zaken,

Shelly Mankey, and Susan Cowan acted “[t]hrough the presumed chain of command … to hold

[Plaintiff] in the RHU for theft of case-file,” id. at ¶ 54, but provides no other well-pleaded facts

of their personal involvement regarding this incident.22

All of these Defendants were also

mentioned in the February 17, 2015 grievance. Id. at ¶ 19. There are no other allegations

regarding Cowan or Zaken. As to DSCS DiAlesandro, the only other allegations are that

Plaintiff sent him a Request Slip and that he “adhere[d] to [the] secret unconstitutional policy of

greed.” Id. at ¶¶ 15, 86. The only other allegation against Mankey is that she, together with

Defendant Shreve, “tried to frame [Plaintiff’s] jocular Request Slips as serious offenses” when

because there are no facts to support this conclusory statement. 21

The complaint is misnumbered and contains several paragraphs labeled “83.” 22

The Court notes that although Superintendent Gilmore was also included in this factual

allegation, the Court has preliminarily determined that based on other allegations in the

complaint, he should not be dismissed from the case before service is made on him. See (Compl.

at ¶¶ 26, 27).


22

he was trying to be funny and called his noisy neighbors inappropriate nicknames; but he alleges

no constitutional harm resulted from this incident. There are no other allegations in the

complaint against Defendant Shreve. As a result, Defendants DiAlesandro, Zaken, Mankey,

Cowan, and Shreve should be dismissed from this action with prejudice because Plaintiff has not

asserted any factual allegations with respect to any of these Defendants being personally

involved in his alleged constitutional deprivations, and it would be futile to allow Plaintiff to

amend his claims as to these Defendants.

The only allegation against Defendant Captain Troyan is that he “described” the specific

property of Plaintiff’s that was stolen by other correctional officers. Id. at ¶ 10. The only

allegation against Defendant Mr. Gardner, the law librarian, is that the hearing examiner refused

to call him as a witness during Plaintiff’s misconduct hearing and that he did not want to get

involved in the situation. Id. at ¶ 12. As to Defendant Gasker, the block psychologist, the only

allegations are that she was mentioned in the February 17, 2015 grievance, spoke over the phone

with Plaintiff’s mother, and was “suspiciously … promoted to PRC position afterwards,” id. at

¶¶ 17, 19, 25, but there are no factual allegations that she was personally involved in any of the

alleged constitutional violations. Like all of the other Defendants in this section, Defendants

Troyan, Gardner, and Gasker should be dismissed from this case with prejudice, because there

are no well-pleaded factual allegations regarding their personal involvement, and Plaintiff cannot

cure these deficiencies by filing an amended pleading.

8. Alleged Unconstitutional Policies

The complaint alleges that the DOC has an “unconstitutional policy of misanthropic

greed.” See (Compl. at ¶¶ 105-110). However, as noted above, the DOC is entitled to Eleventh

Amendment immunity regarding all of Plaintiff’s § 1983 claims. Therefore, even if the


23

complaint asserted facts to support the conclusory allegations regarding this alleged policy,

Plaintiff still could not recover here against the DOC.

As to the state medical contractor at SCI-Greene, Defendant Correct Care Solutions

(“CCS”), the complaint fails to allege any facts regarding a policy or custom that it implemented

that caused any of his alleged unconstitutional violations. See Monell v. Dep't of Social Servs.,

436 U.S. 658, 690, 694 (1978); Estate of Thomas v. Fayette Cty., 194 F.Supp.3d 358, 382 (W.D.

Pa. 2016) (state contractors may be held liable under Monell). Plaintiff alleges that CCS acted

“like its Corizon and PHS predecessors” by “continu[ing] the notorious reputation of prison

healthcare providers making piecemeal pretences of helping prisoners; while failing to take any

comprehensive, scientific, holistic, or objective approach to resolving the root cause of any

health issue.” (Compl. at ¶ 90). Plaintiff attempts to hold CCS liable for the acts of its

employees and others at the prison, alleging that “[t]he conduct of all defendants working at the

prisons, indicates that CCS is liable for damages … because of the certainty of foreseeing

constitutional violations against [Plaintiff[ and the class of prisoners like him suffered, by their

adherence to the secret policy of greed.” Id. at ¶ 83. However, liability may not be premised on

a theory of respondeat superior, Monell, 436 U.S. at 694, and there are no facts in the complaint

to support a reasonable conclusion that CCS itself had in place any unconstitutional policies or

customs that caused Plaintiff’s alleged harms. Because Plaintiff is improperly attempting to hold

CCS liable based on the conduct of others at the prison, it would be futile to allow him to amend

this claim.

III. CONCLUSION

Based on the foregoing, and pursuant to 28 U.S.C. § 1915(e)(2)(B), it is respectfully

recommended as follows:


24

1. Plaintiff should be able to proceed in this action with his First Amendment retaliation

claim, Eighth Amendment claim, Fourteenth Amendment procedural due process

claim, Fourteenth Amendment equal protection claim under a “class of one” theory;

and Americans with Disabilities Act claim against the following Defendants:

Pennsylvania Department of Corrections, C.O. Pegram, Sergeant Gibson, C.O.

Sanders, Kerns-Bar, Superintendent Gilmore, RHU Nurse K. Mills, and Nurse Elaine

Waula.

2. The following claims in the complaint should be dismissed with prejudice: all § 1983

claims against the Pennsylvania DOC and individual Defendants employed by the

DOC who were acting in their official capacities; all of the conspiracy claims in the

complaint, including the claims asserted under §§ 1985(3) and 1986; the access to the

courts claim; the Fourth Amendment claim; and the Fifth Amendment procedural due

process claim.

3. The following Defendants should be dismissed from this action with prejudice: Dr.

Pillai, Christopher H. Oppman, Correct Care Solutions, Patricia Stover, Irma Vihlidal,

Mark DiAlesandro, John E. Wetzel, Dr. Paul Noel, Susan McNaughton, Joanna

Torma, Dr. Robert Marsh, Dr. Kristofer “Bret” Bucklen, Susan Cowan, Shelly

Mankey, William R. Stoycos, Kathleen Kane, Ellen Granaham, Tom Wolf, Dennis G.

Charles, Dr. Robert Sadoff, Harry Jones, Theron Perez, Deputy Michael Zaken, Tracy

Shreve, Ms. Gasker, David Frattare, Maureen Grace, Lynn Patrone, Robert L.

Steinberg, Michael Alan Sprow, Correale Stevens, Jack Panella, James J. Fitzgerald,

III, Sallie Updyke Mundy, Captain Troyan, L.S. Kerns-Bar, Mr. Gardner, C.O.

Pegram, James Barnacle, and Dr. Frank Datillio.

4. Plaintiff should be denied leave to file an amended complaint, and the complaint, as

modified herein, should be served on the remaining Defendants following the Court’s

Order adopting this Report & Recommendation.

In accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(b)(2), Plaintiff’s Objections

to this Report & Recommendation are due by March 21, 2017. Plaintiff is cautioned that failure

to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman,

637 F.3d 187, 193 n. 7 (3d Cir. 2011) (emphasis in original).

Dated: March 7, 2017.

By the Court:

s/ Cynthia Reed Eddy

Cynthia Reed Eddy

United States Magistrate Judge

cc: all registered users of CM-ECF


report & recommendation i. recommendation

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