                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   ___________

                                   No. 17-3165
                                   ___________

                               JASON KOKINDA,
                                           Appellant

                                         v.

       PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DR. PILLAI,
      (Official/personal capacity); CHRISTOPHER H. OPPMAN, MBA, MHA
   (official/personal capacity); PATRICIA STOVER, (official/personal capacity);
     IRMA VIHLIDAL, (Medical Director) (official/personal capacity); MARK
    DIALESANDRO, DSCS (official/ personal capacity); ROBERT GILMORE,
(Superintendent) (official/personal capacity); JOHN DOE #1, CHCA (official/personal
    capacity); SHELLEY MANKEY, (Unit Manager) (official/personal capacity);
             CORRECT CARE SOLUTIONS, (Official/personal capacity)
                   _______________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                           (D.C. Civil No. 16-cv-01457)
                    District Judge: Honorable Mark R. Hornak
                  _______________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 July 19, 2018

          Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges

                           (Opinion filed: June 24, 2019)




                                    _________
                                        OPINION *
                                        _________


PER CURIAM

       Appellant, Jason Kokinda, appeals from the District Court’s order dismissing his

civil action. We will affirm the District Court’s judgment.

       Kokinda, formerly a Pennsylvania prisoner at the State Correctional Institution in

Waynesburg, Pennsylvania (“SCI-Greene”), filed a civil rights complaint pursuant to 42

U.S.C. §§ 1983, 1985(3) and 1986, as well as Title II of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12132. Named as defendants were the Pennsylvania

Department of Corrections (“DOC”), numerous employees of the DOC, a medical-

services contractor, and a prison medical-services provider. 1 Defendants were sued in

their official and individual capacities. In his third amended complaint (which is the

operative pleading), Kokinda alleged that the various defendants violated his First,

Eighth, and Fourteenth Amendment rights by denying him proper mental health treatment

and related ADA accommodations, and by engaging in retaliation and a civil conspiracy.



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  In particular, Kokinda named as defendants: the DOC and supervisors Christopher H.
Oppman, Patricia Stover, Deputy Superintendent for Correctional Services Mark
DiAlesandro (“DSCS DiAlesandro”), and Superintendent Robert Gilmore, as well as Unit
Manager Shelley Mankey (“UM Mankey”), and Corrections Health Care Administrator
Irma Vihlidal (“CHCA Vihlidal”); Dr. Pillai; and medical contractor, Correct Care
Solutions (“CCS”).
                                           2
       The Magistrate Judge (“MJ”) to whom the action was referred issued a Report and

Recommendation (“R&R”) that sets forth, in detail, the allegations of Kokinda’s

complaint against defendants. See R&R at 2-6. Accordingly, we only briefly summarize

those allegations here. Kokinda claims that on September 30, 2014, when he was housed

on the mental health block at SCI-Greene, he submitted a request slip to CHCA Vihlidal

that included an Inmate Disability Accommodation Form. In that form, he requested

several accommodations for his alleged disabilities of Obsessive Compulsive Disorder

and Hallucinogen Persisting Perception Disorder (“OCD/HPPD”), which resulted from

his use of LSD as a teenager. When experiencing a stressful environment like the mental

health block at SCI-Greene, Kokinda asserts that his OCD/HPPD “results in agitating

ego-dystonic dreamlike visual thoughts … and [the] perception of things being

contaminated with LSD; causing disorientation if [he] fails to effectuate specific cleaning

rituals.” Compl. at ¶¶ 1-2. To assist with managing his condition, Kokinda requested

permission to take nightly showers, to be housed on a particular unit in a single cell, to be

provided with a special soap containing lye, to be able to clean adequately, to be treated

under more relaxed policies, and to be able to direct the order that prison officials

searched his cell. Id. at ¶¶ 10-11. CHCA Vihlidal ultimately denied Kokinda’s requests

in one form or another, and denied his subsequent request for, inter alia, an immediate

transfer to a lower security prison that does not use “misanthropic psychological

adversity techniques as a form of mind-control security.” Id. at ¶ 22.


                                              3
       Kokinda asserts that the lack of accommodations caused him to suffer effects

similar to a “bad trip” on LSD. Id. at ¶ 20. He claims that, by denying his requests,

CHCA Vihlidal showed deliberate indifference to his serious medical needs. Id. at ¶ 24.

Defendants Oppman, Stover, DSCS DiAlesandro and Gilmore were alleged to be

responsible as a result of their supervisory positions within the DOC. Id. at ¶¶ 38-41.

Supervisory liability was likewise asserted against CCS, as was a claim of liability based

on its failure to ensure that prisoners with disabilities are “properly accommodated with

flexible policies” and for its failure to ensure that prisoners “are not fully denied

handicap-related medical services.” Id. at ¶ 37. Dr. Pillai, a treating physician at SCI-

Greene, was alleged to have been liable for “not recording nor reporting the severity of

[Kokinda’s] ‘stress-induced symptoms,’” not “helping [him] obtain ADA

accommodations,” and denying him “handicap-related medical services altogether; by not

even providing any treatment for his severe OCD/HPPD at all, whatsoever.” Id. at ¶¶ 42,

44. Kokinda further alleged that all defendants are culpable as conspirators due to their

participation in a “secret unconstitutional policy of greed (generating profits at the

expense of prisoners’ health and lives), above any sense of morality or conscience.” Id.

at ¶¶ 38-41, 43, 50, 59-66. Finally, Kokinda alleged that all of the defendants looked for

his weaknesses for the purpose of using “psychological stressors to traumatize [him]

through adversarial psychology techniques … carr[ied] out under the guise of security” in

retaliation for his filing of grievances about abusive prison conditions at SCI-Greene. Id.

at ¶¶ 33, 57.
                                               4
       Defendants filed motions to dismiss for failure to state a claim for which relief

could be granted. The MJ issued a Report recommending that the motions be granted and

that Kokinda’s third amended complaint be dismissed with prejudice. Over Kokinda’s

objections and after de novo review, the District Court adopted the R&R as the opinion of

the court, granted defendants’ motions and dismissed the third amended complaint with

prejudice. The District Court subsequently denied Kokinda’s motion for reconsideration

filed pursuant to Fed. R. Civ. P. 59(e). This timely appeal followed. 2

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review of

a District Court’s decision to grant a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6). 3 Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “[I]n deciding

a motion to dismiss, all well-pleaded allegations . . . must be taken as true and interpreted

in the light most favorable to the plaintiff[], and all inferences must be drawn in favor of



2
  Kokinda did not mention the District Court’s order denying his reconsideration motion
in his notice of appeal and, more importantly, he has raised no arguments addressed to
that order in his appellate brief. We thus do not consider that order within the scope of
this appeal. Even if we were to liberally construe the notice of appeal to include the
order, see Pacitti v. Macy’s, 193 F.3d 766, 776 (3d Cir. 1999), we would find no abuse of
discretion on the part of the District Court. See McDowell v. Phila. Hous. Auth., 423
F.3d 233, 238 (3d Cir. 2005). The court correctly denied the Rule 59(e) motion insofar as
Kokinda challenged the District Court’s ruling that we affirm here.
3
  Because Kokinda makes no argument regarding CCS, we deem any challenge to the
dismissal of that defendant as waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993). Such a challenge would be meritless in any event. See Groman v. Twp. of
Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (holding that “vague assertions” of a policy
or custom, without more, are not sufficient to state a claim under Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978)).
                                             5
[him].” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal citation

omitted). To withstand a Rule 12(b)(6) 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)). As did the District Court, we construe Kokinda’s pro se

pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

       Even with such liberal construction, we agree with the District Court’s summary

disposition of Kokinda’s claimed violations of §§ 1983, 1985(3), and 1986 against the

DOC and the individual Commonwealth defendants sued in their official capacities

because those claims are barred by the Eleventh Amendment. See Pa. Fed’n of

Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). Additionally,

Kokinda failed to state a claim under 42 U.S.C. § 1985(3) because he did not allege

discrimination on account of his race or any other class-based ground for animus. See

Griffin v. Breckenridge, 403 U.S 88, 102 (1971) (requiring racial or “otherwise class-

based invidiously discriminatory animus”); cf. Abdul-Akbar v. McKelvie, 239 F.3d 307,

317 (3d Cir. 2001) (en banc) (neither prisoners nor indigents are suspect classes for

Fourteenth Amendment equal protection purposes). 4 Because Kokinda failed to state a


4
   We further conclude that there is nothing in Kokinda’s filing to suggest that he was
attempting to bring an equal protection claim by a “class of one,” i.e., an individual
claiming “that [ ]he has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). To the contrary, Kokinda
repeatedly referenced himself and “the class of prisoners like him,” with no mention of
                                               6
viable claim under § 1985(3), his claim pursuant to 42 U.S.C. § 1986 necessarily fails.

See Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980). Kokinda’s claims for

individual damages liability under Title II of the ADA fail for the simple reason that there

is no such liability. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98,

107 (2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir.

1999) (en banc); see also Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002)

(noting that “there appears to be no individual liability for damages under Title I of the

ADA”).

       The District Court was likewise correct to dismiss the complaint as to defendants

Oppman, Stover, DSCS DiAlesandro, Gilmore and UM Mankey given Kokinda’s failure

to sufficiently plead that they were personally involved in any of the alleged violations.

See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988)) (“A[n individual government] defendant in a civil

rights action must have personal involvement in the alleged wrongdoing; liability cannot

be predicated solely on the operation of respondeat superior.”). With the exception of

UM Mankey’s response to his request for state-issued soap, Kokinda’s third amended

complaint fails to set forth specific allegations that these defendants were personally

involved in any of the actions about which he complains. Moreover, UM Mankey’s

response instructing Kokinda how to make a proper request for certain soap does not


disparate treatment between him and the others in the “class.” See, e.g., Compl. at ¶¶ 38-
41.
                                           7
amount to personal involvement within the meaning of § 1983. See Rode, 845 F.2d at

1208. Kokinda’s conclusory allegations of a conspiracy among defendants to implement

“a policy of greed over civil rights” does little to salvage his claim. See Fantone v.

Latini, 780 F.3d 184, 191 (3d Cir. 2015) (a conspiracy claim depends on whether a

constitutional violation occurred); see also Capogrosso v. Supreme Ct. of N.J., 588 F.3d

180, 184 (3d Cir. 2009) (per curiam) (A conspiracy claim “must include at least a

discernible factual basis to survive a Rule 12(b)(6) dismissal.”).

       The claims against defendants CHCA Vihlidal and Dr. Pillai fare no better. The

Eighth Amendment imposes duties on prison officials to “provide humane conditions of

confinement” and “ensure that inmates receive adequate food, clothing, shelter, and

medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). To

state an Eighth Amendment conditions of confinement claim, Kokinda must allege that

(1) the deprivation alleged was objectively, “sufficiently serious” such that the prison

officials’ acts or omissions resulted in the denial of “the minimal civilized measure of

life’s necessities”; and (2) that the prison officials exhibited a “deliberate indifference” to

his health and safety. Id. at 834 (citations omitted). Where conditions are not “cruel and

unusual” but merely “restrictive and even harsh,” they do not violate the Eighth

Amendment but rather “are part of the penalty that criminal offenders pay for their

offenses against society.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also

Wilson v. Schillinger, 761 F.2d 921, 925 (3d Cir. 1985) (An inmate’s rights are “subject


                                               8
to limitations and restrictions that would be intolerable if imposed against the general

public.”).

       Kokinda’s complaint is void of allegations that defendant CHCA Vihlidal caused

him to suffer the deprivation of those means necessary for the maintenance of life’s

necessities (and, in particular, his hygiene) because he was denied residue-free lye soap,

nightly private showers, and a laundry policy permitting the more frequent washing of his

bedding and coat. Moreover, as the District Court correctly stated, Kokinda had no

protected right to be placed in the cell of his choice, see Sheehan v. Beyer, 51 F.3d 1170,

1174 (3d Cir. 1995), or to be transferred to a particular penal institution. See Asquith v.

Dep’t of Corr., 186 F.3d 407, 410 (3d Cir. 1999). Given that “maintaining institutional

security and preserving internal order and discipline” is of paramount importance to

prison officials, we likewise agree with the District Court that Kokinda’s constitutional

rights were not violated simply because he could not dictate the manner in which prison

officials conducted searches of his cell. See Bell v. Wolfish, 441 U.S. 520, 546 (1979).

       Perhaps somewhat troubling, at first blush, is Kokinda’s allegation that defendant

Dr. Pillai violated his Eighth Amendment rights by failing to provide treatment or

handicap-related medical services to reduce the stress of his OCD/HPPD. Compl. at ¶¶

44-45. However, we must agree with the District Court’s conclusion that Kokinda’s

assertion is conclusory and lacking in supporting factual detail. See Iqbal, 556 U.S. at

678-79. The Supreme Court has held that “deliberate indifference to serious medical

needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . .
                                             9
proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).

Establishing a claim requires proving both an objective component—“a serious medical

need”—and a subjective component—“acts or omissions by prison officials that indicate

deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,

582 (3d Cir. 2003). A plaintiff may show deliberate indifference by demonstrating that

“there was objective evidence that [the] plaintiff had serious need for medical care . . .

and prison officials ignored that evidence” or where “necessary medical treatment is

delayed for non-medical reasons.” Id. (internal quotation marks omitted). Even

assuming arguendo that his OCD/HPPD amounted to a serious medical condition, the

third amended complaint falls short of stating an Eighth Amendment violation against Dr.

Pillai. Rather than allege that he requested necessary medication or treatment from Dr.

Pillai that was denied, Kokinda instead acknowledged that past treatment attempts (by

health care providers other than Dr. Pillai) in the form of tranquilizers, antipsychotic

medications, and relaxation techniques were unsuccessful, and some came with “severe

intolerable side-effects.” See Compl. at ¶¶ 31-32. Eighth Amendment liability does not

fall upon Dr. Pillai simply because Kokinda discovered after his release from

confinement that certain antidepressants and over-the-counter herbal supplements

appeared to be effective in helping to manage his OCD/HPPD symptoms in certain

environments. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).

       We dispose of Kokinda’s First Amendment claim with little discussion as the

District Court properly concluded that he failed to sufficiently allege retaliatory conduct
                                             10
that caused him to suffer an adverse action. See Rauser v. Horn, 241 F.3d 330, 333-34

(3d Cir. 2001). Kokinda’s third amended complaint likewise falls woefully short of

alleging a Fourteenth Amendment equal protection claim. See Phillips v. County of

Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Finally, the District Court did not err in

concluding that Kokinda’s claim under Title II of the ADA against the DOC fails as a

matter of law insofar as he did not assert that he was denied adequate accommodations or

medical treatment on account of or because of his disability as required. 42 U.S.C.

12132; see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010).

       We have considered Kokinda’s remaining arguments and have determined that

they are meritless. Moreover, under the circumstances of this case, the District Court did

not abuse its discretion in dismissing Kokinda’s complaint without further leave to

amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Contrary to Kokinda’s assertion that he “was not given even one opportunity to amend

his Complaint,” see Appellant’s Br. at 10, the District Court afforded him three

opportunities to correct the deficiencies in his complaint. Accordingly, we will affirm the

District Court’s order dismissing Kokinda’s third amended complaint with prejudice and

without leave to amend.




                                            11
