Opinion
2:17-CV-00217-MRH
05-13-2021
JASON KOKINDA, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN DOE #4, CHCA; ROBERT GILMORE; JOHN DOE #3; SGT. GIBSON; CO W. SANDERS; JOHN DOE #1; JOHN DOE #2; L. S. KERNS-BARR; C.O. PEGRAM; RN K. MILLS; ELON MWAURA; JANE DOE #1; JOHN DOE #5; AND JOHN DOE #6 Defendants
REPORT & RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge.
I. RECOMMENDATION
This prisoner civil rights action was initiated in this court on February 16, 2017, by pro se Plaintiff Jason Kokinda, who is a former inmate at SCI-Greene. At issue is a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant Elon Mwaura. (ECF No. 121). For the reasons that follow, it is respectfully recommended that Mwaura's motion to dismiss for failure to state a claim be granted in part and denied in part.
Of note, Kokinda has unsuccessfully pursued numerous lawsuits in this Court. See Kokinda v. Jin et al., 2:15-cv-179-MRH-CRE (abandoned by Plaintiff); Kokinda v. Pennsylvania Department of Corrections et al., 2:15-cv-01593-MRH-CRE (motion to dismiss granted and remaining clams sua sponte dismissed on grounds of non-mutual issue preclusion; case closed and on appeal); Kokinda v. Pennsylvania Department of Corrections et al., 2:16-cv-5-MRH-CRE (summary judgment granted, case closed and on appeal); Kokinda v. Pennsylvania Department of Corrections et al., 2:16-cv-1457-MRH-CRE (motions to dismiss granted, case closed and on appeal); Kokinda v. Pennsylvania Department of Corrections et al., 2:16-cv-1580 (motion to dismiss granted, case closed and on appeal).
II. REPORT
A. Procedural History
Kokinda was incarcerated at SCI-Greene from September 3, 2014 through October 30, 2015, and he has unsuccessfully pursued another action based upon matters arising from his incarceration concerning an alleged soy allergy. In this action, Kokinda claims that while incarcerated at SCI-Greene during the period between February 20, 2015 and March 21, 2015, he suffered several violations of his constitutional and statutory rights.
Specifically, Kokinda alleged that a doctor and nurse at SCI-Greene violated his Eighth Amendment rights by failing to order a non-soy diet to treat Kokinda's alleged soy allergy. It was the doctor's professional opinion that Kokinda suffered from a possible soy intolerance and that ordering a non-soy diet was not medically indicated. This Court granted summary judgment in favor of defendants, and the Third Circuit Court of Appeals affirmed that judgment. See Kokinda v. Pennsylvania Dep't of Corr., 2017 WL 11461569 (W.D. Pa. 2017), affirmed, 797 Fed.Appx. 69, 73 (3d Cir. 2019).
On February 16, 2017, Kokinda filed an application to proceed in forma pauperis (ECF No. 1), which was granted on February 27, 2017. (ECF No. 2). Also on February 27, 2017, Kokinda filed his initial complaint. (ECF No. 3). On March 7, 2017, the Court issued a Report and Recommendation (ECF No. 6) regarding Kokinda's original complaint, which recommended that, in accordance with 28 U.S.C. § 1915(e)(2), only certain claims against certain defendants be allowed to proceed, and that all other claims and defendants named in the complaint be dismissed sua sponte with prejudice. It was further recommended that Kokinda be denied leave to file an amended complaint and that the original complaint, as modified by the Report and Recommendation, be served on the remaining defendants.
Rather than filing objections to the Report and Recommendation as instructed, Kokinda filed a first amended complaint (“FAC”) (ECF No. 7) on March 11, 2017. Sixty-two defendants were named and the FAC has 231 numbered paragraphs. The Court reviewed Kokinda's allegations, determined that they did not change the Court's prior recommendation, and entered a second Report and Recommendation taking the amendments into consideration. (ECF No. 10). On April 4, 2017, the Honorable Mark R. Hornak adopted the Report and Recommendation as the Opinion of the Court, and entered an Order denying Kokinda leave to file a second amended complaint and dismissing certain claims. (ECF No. 14). The Court permitted Kokinda to proceed on his First Amendment retaliation claim, Eighth Amendment claim, Fourteenth Amendment procedural due process claim, and Fourteenth Amendment equal protection claim under a “class of one” theory against the following Defendants: C.O. Pegram, Sergeant Gibson, C.O. Sanders, Hearing Examiner L.S. Kerns-Bar, Superintendent Gilmore, RHU Nurse K. Mills, and Nurse Elaine Waula. Kokinda was also permitted to proceed with his ADA claim against the DOC.
The following claims and defendants were dismissed: all Section 1983 claims against the Pennsylvania DOC and individual Defendants employed by the DOC who were acting in their official capacities; all 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.
Nurse Elaine Waula is actually Nurse Elon Mwaura, the Defendant who filed the motion to dismiss at issue in this matter. This Court will refer to this Defendant as Mwaura hereinafter.
The two-year timeframe between the filing of the motion to dismiss and the issuance of the Report and Recommendation occurred for several reasons. Specifically, the motion was held in abeyance twice pending Kokinda's unsuccessful appeals. (ECF Nos. 57, 68). Additionally, Kokinda requested a stay pending an appeal to the United States Supreme Court, and the stay was eventually denied. (ECF Nos. 77-79, 81). Kokinda has also filed numerous frivolous motions for recusal. (ECF Nos. 15, 16, 23, 25, 37, 39, 83). He has filed numerous motions for reconsideration of the decisions denying recusal. (ECF Nos. 19, 20, 50, 86). He also sought extensions of time to file responses to the motion to dismiss. (ECF No. 73, 80). After this initial screening, some defendants were served. On June 22, 2017, Defendants Gibson, Sanders, Kerns-Barr, Gilmore, Mills, and the DOC filed a motion to dismiss for failure to state a claim. (ECF No. 51). On June 22, 2019, this Court issued a Report and Recommendation recommending that the motion be granted as to Kokinda's Fourteenth Amendment procedural due process, Fourteenth Amendment equal protection, and ADA claims, and be denied with respect to the First Amendment retaliation claim against Gibson and Sanders and the Eighth Amendment claims against Gilmore and Mills. (ECF No. 94). On May 3, 2019, Chief Judge Hornak adopted this Court's Report and Recommendation as the Opinion of the Court. (ECF No. 104).
Defendant Mwaura was eventually served, and on September 23, 2019, she filed the instant motion dismiss for failure to state a claim and brief in support thereof. (ECF Nos. 121, 122). Kokinda filed a response on April 15, 2021, as well as a supplemental response on May 11, 2021. (ECF Nos. 157, 160). This motion is now ripe for disposition.
Initially, rather than actually responding to the motion, Kokinda claimed that due to his continued “unlawful confinement, ” he does not have a copy of the motion or access to his case file. Therefore, he stated that “filing a response is … pointless even if the case file were available.” Pl.'s Resp. (ECF No. 157) at 2. Nevertheless, the Court ordered permitted Kokinda to file an additional response, which he did on May 11, 2021. (ECF Nos. 159, 160).
Kokinda has filed numerous motions for stay and sought other avenues to delay the disposition of this motion, along with the rest of this case. For example, shortly after Defendant Mwaura filed the motion to dismiss, on October 16, 2019, Kokinda filed a motion for stay. (ECF No. 125). Because Kokinda claimed he was incarcerated and had no access to a law library, on November 25, 2019, this Court administratively closed the case and held this motion in abeyance. (ECF No. 132). On December 1, 2020, Kokinda represented to the Court that the charges that were keeping him in jail would be resolved by February 23, 2021, and therefore this Court ordered Kokinda to file a response to Defendant's motion to dismiss by February 26, 2021. (ECF Nos. 148, 150). Nevertheless, on February 16, 2021, Kokinda requested another stay in this matter. (ECF No. 151). This Court extended Kokinda's date to file a response to March 31, 2021. (ECF No. 152). On March 30, 2021, rather than filing a response, Kokinda filed another motion for recusal. (ECF No. 154). This Court denied that motion and ordered a response to be filed by April 12, 2021. (ECF No. 156).
B. Factual Allegations
Distilled to its essence, the FAC asserts that Kokinda was issued a false misconduct charge at SCI-Greene and was placed in the restrictive housing unit (“RHU”) in retaliation for filing a grievance and circulating affidavits to be signed by other inmates. While in the RHU, Kokinda claims that he suffered and was starved, which exacerbated his mental illness. The FAC asserts a plethora of causes of action against various defendants.
By way of background, according to Kokinda, he was subject to “hyperscrutiny” at SCI-Greene for making records of staff violations that could result in liability. FAC (ECF No. 7) at ¶ 107. Kokinda avers that members of the SCI-Greene staff “were finally able to take action against” him when he filed a grievance on February 17, 2015. Id. at ¶ 108. The grievance complains of misappropriation of funds designated for mentally ill prisoners “in violation of 18 U.S.C. § 666, and the ADA.” See Exhibit 1 (ECF No. 51-2). On February 18, 2015 the grievance was rejected on the grounds that Kokinda had failed to comply with the provisions of the DC-ADM 804, specifically, the grievance did not indicate that he was personally affected by a DOC facility action or policy. Id. at 4.
According to the allegations of the FAC, on February 20, 2015, Kokinda “began to collect signed copies of an affidavit he drafted, ” which “detailed succinctly [] the abuses of the prison that were ongoing.” FAC (ECF No. 7) at ¶¶ 113-14. Kokinda claims that on noon that day, he was placed in handcuffs and his cell was searched. Id. at ¶ 122. Kokinda was then transferred to the RHU “by mistake, and then hours later taken to [the] Mental Health Block.” Id. at ¶ 124. Kokinda remained in this unit March 10, 2015, and while there he suffered “due to his inability to access the commissary that he was relying on to feed himself; in light of his soy allergy, divine revelations, and the psychosis he was suffering from the staff intentionally doing everything possible to exacerbate his mental illness.” Id. at ¶ 126.
Relevant to the instant matter, Kokinda avers that “[i]n the midst of the ten most severe days of [him] being starved; he had blacked out and fallen, and then was barely able to hobble at all to see the nightshift nurse [] Mills.” Id. at ¶ 144. According to Kokinda, Mills “informed [Kokinda] that the staff were falsely marking that he had eaten every meal; showing ‘deliberate indifference' to his allergy and risk of severe injuries.” Id. Kokinda then “immediately requested to see [Mwaura, a prison nurse, ] to obtain a soy-free diet; which she denied on February 24, 2015; by alleging that [Kokinda] could survive on just the tiny portions of fruit and vegetables; showing ‘deliberate indifference' to the serious risk of injury.” Id. at ¶ 145. Then, according to Kokinda, “[a]fter another [s]ick [c]all requesting weight check; [Mwaura] had apparently rigged the cheap dial scale so that it would read much higher (178 lbs.) than he actually weighed (130 lbs.) on her March 9, 2015 visit; in order to cover up the actual damage being done to [] Kokinda's health, on the records; with his weight typically at 210lbs. to 215lbs. lean.” Id. at ¶ 146. It is Kokinda's claim that he suffered greatly in numerous ways due to this starvation and coverup. Id. at ¶¶ 148-52.
C. Standard of Review
To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “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)). The reviewing court must “determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where the factual allegations of the complaint conceivably fail to raise, directly or inferentially, the material elements necessary to obtain relief under a legal theory of recovery. Twombly, 550 U.S. at 561. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court may take into consideration “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” as well as “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Furthermore, a pro se pleading is 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 a Section 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002). 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); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
Furthermore, “when a complaint is subject to dismissal under Rule 12(b)(6), the court should permit a curative amendment.” Thompson v. Police Dep't of Philadelphia, 2011 WL 4835831, at *2 (E.D. Pa. Oct. 12, 2011). “However, we need not provide a plaintiff with leave to amend if amendment would be inequitable or futile.” Id. “Where a claim is frivolous, amendment is necessarily futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks an arguable basis in either law or in fact.” Id. (internal citation and quotation marks omitted).
D. Discussion
Kokinda asserts four claims against Mwaura: 1) a First Amendment retaliation claim, 2) an Eighth Amendment conditions of confinement claim, 3) a Fourteenth Amendment procedural due process claim, and 4) a Fourteenth Amendment equal protection claim. This Court will address each in turn.
Mwaura references the potential for an ADA claim in her brief as well. See Def.'s Br. (ECF No. 122) at n.1. However, this Court concludes that despite any apparent discrepancy, the ADA claim only remained viable against the DOC, and it was dismissed. See Report and Recommendation (ECF No. 94) at 16-17; Memorandum (ECF No. 104).
1. First Amendment Retaliation Claim
Mwaura first contends that Kokinda's First Amendment retaliation claim should be dismissed because, inter alia, he has failed to allege Mwaura's “personal involvement - as a medical professional - in [] Kokinda's cell placement, confiscation of personal items, or drafting of misconduct reports.” Def.'s Br. (ECF No. 122) at 8. In this Court's Report and Recommendation dated January 22, 2019, and adopted by Judge Hornak on May 3, 2019, it was concluded that Kokinda's First Amendment retaliation claim related to the following categories: “his placement in cell restriction and/or RHU, the improper confiscation of his personal items, and the filing of the misconduct report.” Report and Recommendation (ECF No. 94) at 11. The allegations regarding Mwaura's involvement do not relate to any of the foregoing categories; thus, this Court agrees with Mwaura that she was not personally involved in conduct related to the First Amendment retaliation claim. Therefore, it is respectfully recommended that Mwaura's motion to dismiss be granted with respect to Kokinda's First Amendment retaliation claim.
2. Eighth Amendment Claim
Mwaura next contends that this Court should dismiss the Eighth Amendment deliberate indifference claim against her because “this Court has already dismissed [] Kokinda's allegation relating to a soy allergy” in a prior lawsuit. Def.'s Br. (ECF No. 122) at 10. It is Mwaura's position that Kokinda's allegations against Mwaura derive solely from the soy allergy issue. Id.
The Eighth Amendment, enforced against the states through the Fourteenth Amendment, guarantees incarcerated persons humane conditions of confinement. In this regard, prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). It is well settled that prison conditions constitute cruel and unusual punishment if they result in serious deprivations of basic human needs. See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410 (3d Cir. 2000). A condition of confinement implicates the Eighth Amendment if it is so reprehensible as to be deemed inhumane under contemporary standards or deprives an inmate of minimal civilized measures of the necessities of life. See Hudson v. McMillian, 503 U.S. 1, 8 (1992); Wilson v. Seiter, 501 U.S. 294 (1991). However, the Eighth Amendment does not mandate that prisons be free of discomfort. Farmer, 511 U.S. at 833 (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
Under Farmer, an inmate must surmount the high hurdle of showing that a prison official actually knew of or was aware of a substantial risk to inmate safety and deliberately disregarded that risk. Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). This requirement of actual knowledge means that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
Here, viewing the facts as alleged in the light most favorable to Kokinda, there are sufficient allegations that Mwaura denied him food and then attempted to cover up the denial of food by changing the scale, falsifying records, or not accurately reporting Kokinda's weight. While the court views these allegations with skepticism, given that Kokinda alleges Jesus told him through a revelation not to eat the food because it was poisoned, Kokinda has sufficiently alleged factual support to the claim that Mwaura may have been deliberately indifferent to a risk of harm. It is therefore respectfully recommended that the motion to dismiss the Eighth Amendment claim against Mwaura be denied.
3. Fourteenth Amendment Procedural Due Process Claim
Next, Mwaura contends that the Fourteenth Amendment procedural due process claim against her should be dismissed. Def.'s Br. (ECF No. 122) at 12-17. In this Court's January 22, 2019 Report and Recommendation, it was concluded that Kokinda's procedural due process claim arose from Hearing “Examiner Kerns-Barr's denial of Kokinda's request to call the law librarian as a witness during the hearing on his misconduct charges.” Report and Recommendation (ECF No. 94) at 14. The allegations against Mwaura are not at all related to Kerns-Barr's denial of Kokinda's request to call the law librarian at his hearing. Accordingly, this Court recommends that Mwaura's motion to dismiss the Fourteenth Amendment procedural due process claim be granted as to her.
4. Fourteenth Amendment Equal Protection Claim
Finally, Mwaura contends that her motion to dismiss Kokinda's Fourteenth Amendment equal protection claim should be granted, as Kokinda has failed to allege that Mwaura's failure “to provide him a non-soy diet” was from “treating him differently to those equally situated to him.” Def.'s Br. (ECF No. 122) at 16.
The Equal Protection Clause of the Fourteenth Amendment requires that all people similarly situated be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). A Fourteenth Amendment equal protection claim under a “class of one” theory was recognized in Jackson v. Gordon, 145 Fed. App'x 774, 776 (3d Cir. 2005). According to that theory, a plaintiff establishes a violation of the Equal Protection clause when he shows he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
Here, Kokinda has not set forth any claim that Mwaura was intentionally treating him differently than others similarly situated. Mwaura was not providing Kokinda a non-soy diet because it had been determined that Kokinda did not have a soy allergy. There are no allegations that other inmates who did not have soy allergies were being provided non-soy diets. Accordingly, this Court respectfully recommends that Mwaura's motion to dismiss the Fourteenth Amendment equal protection claim be granted.
E. Conclusion
Based on the foregoing, it is respectfully recommended that Defendant Mwaura's motion to dismiss be granted in part and denied in part. This Court recommends that the motion be denied with respect to the claim for violation of Kokinda's Eighth Amendment rights. This Court recommends that the motion be granted in all other respects. It is further recommended, consistent with the Court's prior orders, that Kokinda not be permitted to amend his complaint as amendment would be futile.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, because Kokinda is a non-electronically registered party, he must file objections, if any, by June 2, 2021, and Defendants, because they are electronically registered parties, must file objections, if any, by May 27, 2021. The parties are cautioned that failure to file Objections within these timeframes “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections shall have fourteen days from the date of service of objections to respond.