# Robins v. Wetzel

> District Court, M.D. Pennsylvania · December 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10411089

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411089

## How later opinions describe it (automated extraction)

- applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to state a claim under §1915(e)(2)(B)
- explaining that when dismissing a complaint pursuant to §1915A, “a court employs the motion to dismiss standard set forth under Federal Rule of Civil Procedure 12(b)(6)”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

JONATHAN ROBINS, :

Plaintiff : CIVIL ACTION NO. 3:21-1474

v. : (JUDGE MANNION)

SECRETARY JOHN WETZEL, :
et al.,
:
Defendants

MEMORANDUM
I. BACKGROUND
Plaintiff, Johnathan Robins, an inmate confined at the Rockview State
Correctional Institution, Bellefonte (SCI-Rockview), Pennsylvania, filed the
above caption civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1).
Plaintiff claims that he will not be eligible for parole until he completes a
mandatory sex offender program. Id. He challenges his removal from the sex
offender program, claiming that his removal from the program has rendered
him ineligible for a parole hearing. Id. For relief, Plaintiff seeks damages as
well as to “finish the program” and a parole board hearing. The named
Defendants are DOC Secretary John Wetzel, Superintendent Salamon,
Supervisor Tice, Unit Manager Condo, Counselor Williams, Coordinator
Damico, the Pennsylvania Board of Probation and Parole, District Attorney
Krasner, and the Philadelphia District Attorney’s Office. Id. The required filing
fee has been paid. (Doc. 6). For the reasons set forth below, Robins’ action
will be dismissed, without prejudice, as legally frivolous pursuant to the
screening provisions of 28 U.S.C. §1915A.

II. STANDARDS OF REVIEW
A federal court may properly dismiss an action sua sponte under the

screening provisions of 28 U.S.C. §1915(e)(2)(B) and §1915A(b) if “the
action is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from

such relief.” Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).
In dismissing claims under §§1915(e)(2) and 1915A, district courts
apply the standard governing motions to dismiss brought pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. See, e.g., Smithson v.

Koons, Civ. No. 15-01757, 2017 WL 3016165, at *3 (M.D. Pa. June 26, 2017)
(stating “[t]he legal standard for dismissing a complaint for failure to state a
claim under §1915A(b)(1), §1915(e)(2)(B)(ii), or §1997e(c)(1) is the same as

that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure.”); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa.

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2010) (explaining that when dismissing a complaint pursuant to §1915A, “a
court employs the motion to dismiss standard set forth under Federal Rule
of Civil Procedure 12(b)(6)”); Tourscher v. McCullough, 184 F.3d 236, 240
(3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for

failure to state a claim under §1915(e)(2)(B)).
In rendering a decision on a motion to dismiss, a court should not
inquire “whether a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The
court must accept as true the factual allegations in the complaint and draw

all reasonable inferences from them in the light most favorable to the plaintiff.
See Phillips v. Cty of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). In addition
to considering the facts alleged on the face of the complaint, the court may
consider “documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
However, “[t]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating “[t]hreadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). “Under the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a complaint must take three steps.
First, it must ‘tak[e] note of the elements [the] plaintiff must plead to state a

claim.’ Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second, it should identify
allegations that, ‘because they are no more than conclusions, are not entitled
to the assumption of truth.’ Id. at 679, 129 S.Ct. 1937. See also Burtch v.

Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere restatements
of the elements of a claim are not entitled to the assumption of truth.” (citation
and editorial marks omitted)). Finally, ‘[w]hen there are well-pleaded factual

allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.’ Iqbal, 556 U.S. at
679, 129 S.Ct. 1937.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (footnote omitted). Deciding whether a claim is plausible is a

“context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 681.
Because Robins proceeds pro se, his pleading is liberally construed

and his complaint, “however inartfully pleaded, must be held to less stringent

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standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citations omitted).

III. ALLEGATIONS IN COMPLAINT
Plaintiff claims that he was charged in the Court of Common Pleas of
Philadelphia County with one count each of Involuntary Deviate Sexual
Intercourse by Forcible Compulsion, in violation of 18 Pa.C.S.A. §3123(a)(1);

Unlawful Contact with a Minor, in violation of 18 Pa.C.S.A. §6318(a)(1);
Statutory Sexual Assault, in violation of 18 Pa.C.S.A. §3122.1; Interference
with Custody of a Child, in violation of 18 Pa.C.S.A §2904(A); and Corruption

of Minors, in violation of 18 Pa.C.S.A. §6301(A)(1). See Commonwealth of
Pennsylvania v. Robins, CP-51-CR-0003430-2009, Criminal Docket.
Although the docket sheet reflects that Plaintiff was convicted on all
five counts, see id., Plaintiff contends that there is a mistake, in that count 1,

Involuntary Deviate Sexual Intercourse (IDSI) by Forcible Compulsion, “was
falsely listed as guilty on [his] sentencing sheet.” (Doc 1).
He claims that while at SCI-Rockview he “was enrolled in sex program

ran by coordinator Ms. Miller” and that “requirements of the sex program are
to give honest feedback and take responsibility for [their] actions.” Id.

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Plaintiff, states, however, that although he “admitted to all actions testified to
at trial by witnesses,” he “believed he was innocent” and “would not lie and
agree with false information in the record.” Id. As such, he attempted to
“provide documents dealing with his conviction to Coordinator Ms. Miller to

explain to her why he had this belief.” Id. He claims that he provided “trial
transcripts, Judge’s Opinion, marriage license signed by a Judge, marriage
laws and other documents.” Id. Plaintiff then explained that the “complainant

testified that she lied to Plaintiff about her age” when they were married, and
that Plaintiff was prevented from presenting any marriage evidence to the
jury. Id. Thus, Plaintiff challenges that charge of IDSI by forcible compulsion,

claiming that “in the trial judge’s opinion, trial judge stated listing of conviction
of 3123(A)(1) was incorrect, it was a ‘clerical error’.” Id.
Plaintiff claims that Miller “viewed the documents Plaintiff provided and
assessed that there was no purpose in furtherance of any government

interest to have Plaintiff continue program” and “in a letter dated December
22, 2020, Miller removed Plaintiff from program saying he would not be listed
as a refusal and it would not be disciplinary.” Id. He states that Miller “then

provided documents to Parole Board for review.” Id.

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Plaintiff states that “later [he] had a meeting with Condo and Williams
who told him the prison would not recommend him for parole because he did
not finish program. Id. He contends that “staff tried to coerce [him] into
agreeing with false information that he was guilt of IDSI by forcible

compulsion and that him having sex with his wife was a criminal offense.” Id.
On March 18, 2021, Plaintiff claims that “someone then decided to
place Plaintiff back into program.” Id. Plaintiff “did all written work” and then

“asked his parole agent, Williams and Damico if participants were allowed to
lie to satisfy program,” but “no one answered [his] questions.” Id. Williams
then allegedly “stated they’re not debating Plaintiff’s marital status because

it was not relevant in the DOC.” Id. Plaintiff claims that Superintendent
Salamon “stated any errors in sentencing documents must be taken up with
Phila Justice system” and that “Plaintiff’s marriage must be evaluated and
that his marital relationship was deviate behavior.” Id. He further stated to

Plaintiff that “Plaintiff’s belief in his innocence make program completion
impossible.” Id.
Plaintiff “has contacted Phila. District Attorneys’ Office Integrity Unit on

4-2-18, 3-18-19, 2-12-20 and 9-7-20, to correct false information in his
record, but Krasner’s Office has yet refused to correct it. Id. Plaintiff claims

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that he “was due to see parole in July, 2021” and was “involuntarily removed
from program in mid May” for “lack of progress” and that “this sabotaged
Plaintiff’s opportunity for parole, as a week later Plaintiff was given a letter
dated 5-28-21 from Parole Board saying Plaintiff had not attended and

participated in program so he would not be seen by Parole.” Id. Plaintiff
“informed Board on 6-7-21 that he was involuntarily removed from program
and he did attend and participate as the Pa law requires to see parole” and

he “has yet to see Parole Board.” Id. Plaintiff claims that Defendant Tice
“stated Plaintiff will not see parole unless enrolled in program.” Id. Plaintiff
states that he “has never refused to be in program.” Id.

On April 11, 2021, Plaintiff filed Grievance No. 922994, “because Pa.
DOC would not honor assessment of Miller, the continued disrespectful
statements about Plaintiff’s marriage and coercion to try to force Plaintiff to
disrespect and demonize his marriage and to force him to lie and agree with

false facts to complete program.” Id. Plaintiff’s grievance “was denied initially,
upheld by Superintendent Salamon and final appeal was denied on July 30,
2021. Id.

Thus, on August 26, 2021, Plaintiff filed the instant action in which he
challenges his participation in the sex offender program, his consideration

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for parole and Defendants’ actions as “discriminatory, insulting and
slanderous.” Id. For relief, Plaintiff seeks damages as well as to “finish the
program,” for the “Phila DA’s Office to correct the ‘clerical error’ saying
Plaintiff was convicted of IDSI” and for the “Board to see Plaintiff for a parole

hearing.” Id.

IV. DISCUSSION

Section 1983 of Title 42 of the United States Code offers private
citizens a cause of action for violations of federal law by state officials. See
42 U.S.C. §1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress....

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under §1983, a
plaintiff must allege “the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was
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committed by a person acting under color of state law.” West v. Atkins, 487
U.S. 42, 48 (1988).
A. Denial of Parole
There are two avenues under federal law by which a plaintiff can seek

relief on complaints related to imprisonment, namely, a petition for writ of
habeas corpus, and a complaint under 42 U.S.C. §1983. Challenges to the
validity of any confinement or to particulars affecting its duration may be

raised in a petition for writ of habeas corpus. See Preiser v. Rodroguez, 411
U.S. 475, 500 (1973). Requests for relief turning on circumstances of
confinement may be presented in a §1983 action. See Muhammad v. Close,

540 U.S. 749, 750 (2004). The United States Supreme Court discussed the
boundary separating habeas corpus and §1983 in Heck v. Humphrey, 512
U.S. 477 (1994).
In Heck, the Supreme Court held that “in order to recover damages for

allegedly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid, a §1983 plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called

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into question by a federal court’s issuance of a writ of habeas corpus.” Id. at
486-487. When a state prisoner seeks damages in a §1983 suit, the district
court must evaluate whether judgment in the plaintiff's favor would
necessarily imply the invalidity of his or her sentence. Id. at 487. If it would,

and the sentence has not already been invalidated, the complaint must be
dismissed. Id.
To the extent that Robins seeks release from confinement, starting with

his request for a parole hearing, such relief is not available via Section 1983.
Robins’ claim is essentially a challenge to the duration of his confinement.
As such, it is not the proper subject of a Section 1983 action and should be

raised in a habeas petition.
To the extent that Robin seeks only an interview with the Parole Board,
claiming that his constitutional rights were violated when the Parole Board
refused to grant him a parole hearing based on his failure to complete the

sex offender program, Section 1983 remains available for procedural
challenges where success would not necessarily spell immediate or speedier
release for the prisoner. See Wilkinson v. Dotson, 544 U.S. 74 (2005).

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B. Eighth Amendment Claim
The Eighth Amendment protects prison inmates from cruel and
unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
However, not all deficiencies and inadequacies in prison conditions amount

to a violation of a prisoner’s constitutional rights. See Rhodes v. Chapman,
452 U.S. 337, 349 (1981). To assert an Eighth Amendment conditions of
confinement claim, a prisoner must satisfy both an objective and subjective

test. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Specifically, a prisoner
must show that the alleged deprivation is “sufficiently serious” and that he
has been deprived of the “minimal civilized measure of life's necessities.”

Farmer, 511 U.S. at 834 (1994). A prisoner must also demonstrate that “he
is incarcerated under conditions posing a substantial risk of serious harm”
and that prison officials possessed a “sufficiently culpable state of mind” and
demonstrated “deliberate indifference” to his health or safety. Id. However,

only “extreme deprivations” are sufficient to present a claim for
unconstitutional conditions of confinement. Hudson v. McMillian, 503 U.S. 1,
8-9 (1992). Mere negligence or inadvertence will not satisfy the deliberate

indifference standard and cannot constitute a violation of the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

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Robins appears to allege that the denial of parole hearings based on
his failure to complete the sex offender program violates his Eighth
Amendment rights. However, he fails to set forth any facts in support of an
Eighth Amendment claim. While it is true that detention beyond the expiration

of a term constitutes punishment within the meaning of the Eighth
Amendment, Robins does not allege that he is detained beyond his
maximum sentence date. See Sample v. Diecks, 885 F.2d 1099, 1108 (3d

Cir. 1989) (“[T]here can be no doubt that imprisonment beyond one’s term
constitutes punishment within the meaning of the eighth amendment.”).
Robins was sentenced on June 29, 2010 to a twelve-to-thirty-year term of

imprisonment. See Commonwealth of Pennsylvania v. Robins, CP-51-CR-
0003430-2009, Criminal Docket. He makes no claims regarding detention
beyond his maximum sentence date. Clearly, Robins has failed to allege any
facts to establish a violation of his Eighth Amendment rights.

C. Fourteenth Amendment Procedural Due Process Claim
The Fourteenth Amendment of the United States Constitution provides
in pertinent part: “No State shall...deprive any person of life, liberty, or

property, without due process of law....” U.S. CONST., amend. XIV. The
United States Supreme Court has mandated a two-part analysis of a

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procedural due process claim: first, “whether the asserted individual interests
are encompassed within the...protection of ‘life, liberty or property[,]’” and
second, “if protected interests are implicated, we then must decide what
procedures constitute ‘due process of law.’” Ingraham v. Wright, 430 U.S.

651, 672 (1977). If there is no protected liberty or property interest, it is
unnecessary to analyze what procedures were followed when an alleged
deprivation of an interest occurred.

In order to constitute a protected liberty interest, an individual must
have a legitimate claim of entitlement to the subject of the deprivation, in this
case, a parole hearing, which rises to more than a unilateral hope, or

expectation of it. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454,
460 (1989). It is well-settled that “[t]here is no constitutional or inherent right
of a convicted person to be conditionally released before the expiration of a
valid sentence.” Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 7 (1979). Instead, a liberty interest for purposes of
parole must arise from state statutes or regulations.
The Pennsylvania Probation and Parole Act does not grant prisoners

any constitutionally protected liberty interest in being released on parole or
reparole prior to the expiration of their maximum terms. See McFadden v.

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Lehman, 968 F. Supp. 1001, 1004 (M.D. Pa. 1997) (Pennsylvania has not
created an enforceable liberty interest in parole, rehabilitative pre-release
programs, or in therapy programs). Pennsylvania law unambiguously
provides that a prisoner is not entitled to release from prison until the

expiration of his maximum sentence.1 Nothing in the Pennsylvania Parole
Act, or any other provision of Pennsylvania law, requires the Board to release
a prisoner on parole prior to the expiration of his maximum term. See Board

of Pardons v. Allen, 482 U.S. 369, 373 (1987) (the existence of a state parole
system alone does not create a constitutionally-protected interest). The
Board has complete discretion to determine whether an inmate is sufficiently

rehabilitated such that he will be permitted to serve the remainder of his
sentence outside the prison walls. See Tubbs v. Pennsylvania Bd. of
Probation and Parole, 152 Pa. Cmwlth. 627, 620 A.2d 584, 586 (Pa.
Commw. Ct. 1993) (stating, “it is well settled under Pennsylvania law that a

prisoner has no constitutionally protected liberty interest in being released
from confinement prior to the expiration of his sentenced maximum term...the
[Board] makes each decision on a case by case basis, and prisoners have

1 A prisoner’s sentence is his maximum term. Krantz v. Pennsylvania
Bd. of Probation & Parole, 86 Pa. Commw. 38, 41, 483 A.2d 1044, 1047
(1984).
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no guarantees that parole will ever be granted”), appeal denied, 536 Pa. 635,
637 A.2d 295 (Pa. 1993).
In the instant action, Robins seeks an interview with the Parole Board
to address his application for parole. (Doc. 1). However, he fails to establish

any constitutionally protected interest in a parole interview. In the absence
of a state statute which creates a liberty interest by conferring a “protectible
expectation of parole,” the safeguards imposed by the due process clause

do not apply. Greenholtz, 442 U.S. at 11; Debrose v. Chesney, 1996 WL
4093, at *2, n.3 (E.D. Pa. Jan. 2, 1996) (“the board’s practice has been to
interview inmates as part of the review of parole applications...however, no

right to such an interview has been established”). Since Pennsylvania has
not created a liberty interest in parole, Plaintiff is not facing any
constitutionally protected harm.
Moreover, Robins acknowledges his ineligibility for parole based on his

failure to successfully complete the sex offender program. To the extent
Plaintiff argues that the sex offender statute merely requires that participation
in the program, as opposed to completion of the program, this claim likewise

fails. The Sex Offender Treatment Statute, 42 Pa. C.S.A. §9718.1, requires
prisoners to undergo treatment in the form of a DOC program of counseling

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or therapy to be eligible for parole. The statute gives the Department of
Corrections “the sole discretion with respect to counseling or therapy
program contents and administration, including the scheduling of an
offender’s attendance and participation.” 42 Pa. C.S.A. §9718.1(c). See,

e.g., Pleaze v. Klem, 335 F. App’x 168, 171-72 (3d Cir. 2009) (even absent
§9718.1, the Parole Board was free to reject a prisoner’s application for
parole due to his failure to complete a recommended program).

Because Plaintiff has no liberty interest in obtaining parole under
Pennsylvania law, he cannot contest the constitutionality of procedural
devices attendant to parole decisions, such as scheduling parole hearings.

D. Fourteenth Amendment Substantive Due Process Claim
“[T]he Due Process Clause contains a substantive component that
bars certain arbitrary, wrongful government actions ‘regardless of the
fairness of the procedures used to implement them’.” Zinermon v. Burch, 494

U.S. 113, 125 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
Conduct can violate substantive due process if it “’shocks the conscience,’
which encompasses ‘only the most egregious official conduct.’” Chainey v.

Street, 523 F.3d 200, 219 (3d Cir. 2008) (quoting United Artists Theatre
Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003)). The

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conduct must be “intended to injure in some way unjustifiable by any
government interest....” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849
(1998).
Robins claims that his removal from the sex offender program violated

his substantive due process rights. However, he acknowledges that he failed
to complete the Sex Offender Program and he was advised to complete the
Sex Offender Program. Plaintiff fails to allege any actions by Defendants that

were “conscience shocking.” Moreover, because there is no constitutional
right to parole, any substantive due process claim is foreclosed. See Thorpe
v. Grillo, 80 F. App’x 215 (3d Cir. 2003).

E. Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment provides
that a state may not “deny to any person within its jurisdiction the equal
protection of the laws,” which is essentially a direction that all persons

similarly situated should be treated alike. U.S. CONST., amend. XIV; City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v.
Doe, 457 U.S. 202, 216 (1982)). An equal protection claim can be brought

by a “class of one,” a plaintiff alleging that he has been “intentionally treated
differently from others similarly situated and that there is no rational basis for

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the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000); Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003); see also Jean-
Pierre v. Bureau of Prisons, 497 F. App’x 164, 168 (3d Cir. 2012). If a
distinction between persons does not implicate a suspect or quasi-suspect

class, state action will be upheld if it is rationally related to a legitimate state
interest. See Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 423
(3d Cir. 2000). Proof of disparate impact alone, however, is not sufficient to

succeed on an equal protection claim; a plaintiff also must prove that the
defendant intended to discriminate. See Vill. of Arlington Heights v. Metro.
Housing Dev. Corp., 429 U.S. 252, 264-66 (1977); Washington v. Davis, 426

U.S. 229, 242, 244-45 (1976). Thus, discriminatory intent must be a
motivating factor in the decision, even though it need not be the sole
motivating factor. See Vill. of Arlington Heights, 429 U.S. at 265-66.
Moreover, to prove a lack of rational basis, a plaintiff must negate every

conceivable rational basis for his differential treatment. See Bd. of Trustees
v. Garrett, 531 U.S. 356, 367 (2001); Ramsgate Court Townhome Ass’n v.
West Chester Borough, 313 F.3d 157, 160 (3d Cir. 2002).

To the extent that Plaintiff claims that because he is required to
complete the sex offender program, he is treated differently than other

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inmates, Plaintiff failed to meet the threshold requirement of an equal
protection claim because he has not alleged differential treatment.
Specifically, Robins does not allege that he is being treated differently from
similarly situated individuals because he is a member of a protected class or

because he exercises some constitutional right. See Abdul-Akbar v.
McKelvie, 239 F.3d 307, 3017 (3d Cir. 2001) (prisoners are not a suspect
class for the purposes of equal protection). In fact, Plaintiff has not alleged

any facts that, if true, would support the conclusion that he is being treated
differently from any similarly situated individual, i.e., other sex offenders.
Moreover, Robins failed to allege that the Board’s consideration of an

inmate’s participation in the sex offender program is not rationally related to
a legitimate penological interest. Indeed, rehabilitation of inmates has been
recognized as a “valid penological interest.” See O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987). Consequently, Plaintiff’s allegations are

insufficient to support a claim for relief under the Equal Protection Clause.
F. Harassment
Plaintiff alleges that Defendants have verbally harassed Plaintiff by

“making insulting statements about his marriage and lie and admit to false
facts.” (Doc. 1). Verbal abuse or harassment is not actionable under 42

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U.S.C. §1983. See Matthews v. Norristown State Hosp., 528 F. App’x 115,
119 (3d Cir. 2013); Aleem-X v. Westcott, 347 F. App’x 731 (3d Cir. 2009);
see also McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001) (taunts and
threats are not an Eighth Amendment violation); Prisoners’ Legal Ass’n v.

Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) (verbal harassment does not
violate inmate’s constitutional rights).
Nor is Robins’ alleged propaganda campaign cognizable under §1983.

See Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 401 (3d
Cir. 2000) (“federal courts are not to view defamatory acts as constitutional
violations.”). See also Karolski v. City of Aliquippa, 2016 WL 7404551, at *7

(W.D. Pa. Dec. 22, 2016) (noting that, “[b]ecause there is no federal
constitutional right to reputation,” “violations of state law, including
defamation, are insufficient to state a claim under §1983”) (quoting Kulwicki
v. Dawson, 969 F.2d 1454, 1468 (3d Cir. 1992)).

V. LEAVE TO AMEND
Before dismissing a complaint for failure to state a claim upon which

relief may be granted, the Court must grant the Plaintiff leave to amend his
complaint unless amendment would be inequitable or futile. See Grayson v.

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Mayview State Hospital, 293 F.3d 103, 114 (3rd Cir. 2002). The Court
concludes that granting Robins leave to amend would be futile as any civil
rights claim is simply not cognizable at the present time.

VI. CONCLUSION
Based on the forgoing, the complaint will be dismissed pursuant to 28
U.S.C. §1915(e)(2)(B)(i) as legally frivolous

The Court will enter an appropriate Order.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Date: December 9, 2021
21-1474-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411089. Public record. Not legal advice.