HORSCH v. CANTYMAGLI

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT RAY HORSCH, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 24-CV-1183

:

JOSEPH CANTYMAGLI, et al., :

Defendants. :

MEMORANDUM

SCHMEHL, J. /S/ JLS APRIL 3, 2024

Robert Ray Horsch, who is currently detained for a probation violation at Chester County

Prison, filed this civil rights action under 42 U.S.C. § 1983 against two Probation Officers,

Joseph Cantymagli and Tiffany Washington. Each are named in their individual and official

capacities. Horsch has also applied to proceed in forma pauperis. For the following reasons, the

request to proceed in forma pauperis will be granted and the case will be dismissed on statutory

screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. FACTUAL ALLEGATIONS1

Horsch’s allegations are somewhat disjointed and difficult to understand. He claims that

he is being mistreated and discriminated against because of his race, color, religious affiliation,

and disability. (Compl. at 3.) Defendant Washington is alleged to have discriminated against

him due to his religion and Defendant Cantymagli and Washington are alleged to have violated

his right to be treated with dignity under the Americans with Disabilities Act (“ADA”). (Id. at

1 The facts set forth in this Memorandum are taken from Horsch’s Complaint (ECF No.

2). The Court adopts the pagination assigned to the Complaint by the CM/ECF docketing

system.

4.) It appears that Horsch was required to attend counseling as part of his probation but

encountered issues with scheduling counseling sessions. Horsch alleges that he attended a

meeting with Washington in November 2022 in which she stated she had a problem “with all of

us Jews think we are better then everyone and do not follow our probation.” (Id. at 6.)

Washington “violated [Horsch] for not completing counseling when she was also having issues

with communication with the counseling program” that Horsch was attending. (Id.) Washington

and Cantymagli allegedly took action to revoke Horsch’s probation knowing that the counseling

service Horsch was to attend itself admitted that it was responsible for scheduling delays due to

Covid-related staffing issues, which Cantymagli allegedly admitted under oath at Horsch’s

Gagnon I violation hearing in December 2023. (Id. at 6, 13.)

Cantymagli also allegedly testified falsely at the hearing when he (1) stated that Horsch

never wrote an apology letter as he was required to do, since Cantymagli knew Horsch had

handed it to his previous probation officer Diane Clemens; and (2) accused Horsch of not

completing a mental health evaluation, which was performed by Dr. Drew Ali Kaikis of Pathway

Counseling in West Chester. (Id. at 13.) Horsch asserts that these accusations were frivolous

and false. (Id. at 5, 14.2) Cantymagli and Washington also allegedly amended Horsch’s

violation for a “new case in Philadelphia,” charging him with “absconding,” “after they

committed fraud and violated me from lies.” (Id.) He asserts that the transcripts of his Gagnon I

and Gagnon II hearings show that the counseling service admitted it was at fault for the

scheduling difficulties. (Id.) Horsch also contends that Cantymagli seeks to have him

reincarcerated for 2.5 to 5 years, when the sentencing guidelines are 8-11 months. (Id.) He

2 Pages 5 and 14 of the Complaint appear to be duplicates.

asserts that both Defendants have overstepped their authority and misused their power.

Cantymagli allegedly told him he would get a long sentence “and that I better run.” (Id.)

Horsch cites several federal criminal statutes covering perjury, making false declarations,

and treason (id. at 13), as well as federal criminal statutes covering conspiracies to deprive civil

rights. (Id. at 4.) He seeks money damages, an order to stop the Defendants from treating other

probationers in the manner in which he has been treated, and an order that the Defendants be

fired from their jobs. (Id. at 6.)

A review of public records indicates that Horsch was convicted in Chester County by

way of a guilty plea on March 16, 2018 for making terroristic threats and theft by unlawful

taking and sentenced to a maximum term of 23 months followed by two-year period of

probation. Commonwealth v. Horsch, CP-15-CR-0002502-2017 (C.P. Chester). He was also

arrested in Philadelphia on January 4, 2024 and charged with failing to register as a sex offender

in violation of 18 Pa. Cons. Stat. § 4915, Commonwealth v. Horsch, CP-51-CR-0000081-2024

(C.P. Philadelphia), possibly the source of his allegation of a “new case in Philadelphia,”

charging him with absconding. Horsch had been previously convicted on child pornography

charges in Chester County in 2013 and sentenced to incarceration and a period of probation, as

well as the requirement that he register as a sex offender. See Commonwealth v. Horsch, CP-15-

CR-0004229-2013 (C.P. Chester). The public dockets for Horsch’s 2013 child pornography

conviction in Chester County and for his 2017 case in Chester County indicate that a probation

violation report was filed on December 12, 2023 by Chester County Adult Probation. A pre-

sentence investigation report for the violation was filed on January 10, 2024, but the violations in

both cases remains open.

II. STANDARD OF REVIEW

The Court will grant Horsch leave to proceed in forma pauperis.3 Accordingly, 28

U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim.

The Court must determine whether the Complaint contains “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) (quotations omitted). ‘“At this early stage of the litigation,’ ‘[the Court will] accept the

facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the

plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . . contains facts

sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir.

2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory

allegations do not suffice. Iqbal, 556 U.S. at 678. Because Horsch is proceeding pro se, the

Court construes the allegations of the Complaint liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d

Cir. 2021). However, ‘“pro se litigants still must allege sufficient facts in their complaints to

support a claim.’” Id. (quoting Mala v. Crown Bay Marina, Inc., 704 F. 3d 239, 245 (3d Cir.

2013)).

III. DISCUSSION

Horsch cited numerous criminal statutes in his Complaint but used the Court’s form

available to prisoners to bring civil rights violations. Construing his allegations liberally, the

Court will consider his allegations under the standards applicable to civil claims against state

actors for violation of an individual’s constitutional rights since “[a] private citizen lacks a

judicially cognizable interest in the prosecution or nonprosecution of another.” See Linda R.S. v.

Richard D., 410 U.S. 614, 619 (1973). The vehicle by which federal constitutional claims may

3 Because Horsch is a prisoner, he must still pay the full amount of the filing fee for this

case in installments as required by the Prison Litigation Reform Act.

be brought in federal court is 42 U.S.C. § 1983. “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 committed by a person acting under color of state law.”

West v. Atkins, 487 U.S. 42, 48 (1988).

A. Civil Claims Based on Criminal Statutes

Horsch cites several federal criminal statutes in his Complaint, namely 18 U.S.C. § 1038

(covering false information and hoaxes related to certain other crimes; part of 18 U.S.C. § Ch. 47

also cited by Horsch), § 241 (conspiracy against civil rights), § 242 (deprivation of rights under

color of law); § 1621 (perjury), 1623 (false declaration before a grand jury), § 2234 (authority

exceeded in executing a warrant), and § 2381 (treason). To the extent he seeks to assert civil

liability based on those statutes, his claims are not plausible. Criminal statutes generally do not

give rise to a basis for civil liability. See Brown v. City of Philadelphia Office of Human Res.,

735 F. App’x 55, 56 (3d Cir. 2018) (per curiam) (“Brown alleges that the defendants violated

various criminal statutes, but most do not provide a private cause of action.”). Indeed, the United

States Supreme Court has stated that, unless specifically provided for, federal criminal statutes

rarely create private rights of action. Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 377

(1958) (stating that where a statute “contains only penal sanctions for violation of it provisions;

in the absence of a clear expression of congressional intent to the contrary, these sanctions

should under familiar principles be considered exclusive, rather than supplemented by civil

sanctions of a distinct statute”); Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver,

N.A., 511 U.S. 164, 190 (1994) (“We have been quite reluctant to infer a private right of action

from a criminal prohibition alone.”). The fact that a federal statute has been allegedly violated

and some person harmed does not automatically give rise to a private cause of action for the

injured person. Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Cannon v.

University of Chicago, 441 U.S. 677, 689 (1979).

Specifically, the perjury statute, § 1621, does not give rise to civil liability. Howard v.

Paye, 188 F. Supp. 3d 496, 499 (E.D. Pa. 2016) (collecting cases and holding that “Howard

cannot state a claim under 18 U.S.C. § 1621 because that federal criminal statute does not give

rise to civil liability”). The grand jury statute, § 1623, also does not provide a plaintiff with a

private cause of action. Olexsak v. Jones, No. 21-20026, 2022 WL 2980985, at *4 (D.N.J. July

28, 2022). Neither does the treason statute, § 2381, since treason is a criminal act taken against

the United States. See Florance v. Bush, No. 09-1470, 2010 WL 2730615, at *12 (N.D. Tex.

May 25, 2010); Holland v. Olesky, No. 18-658, 2018 WL 8803755, at *2 (W.D. Tex. Aug. 14,

2018), report and recommendation adopted, 2018 WL 8803940 (W.D. Tex. Sept. 7, 2018). The

Court has found no authority to support civil liability under § 2234 (authority exceeded in

executing a warrant).

Sections 241 and 242 establish criminal liability for certain deprivations of civil rights

and conspiracy to deprive civil rights. Molina v. City of Lancaster, 159 F. Supp. 2d 813, 818

(E.D. Pa. 2001); Figueroa v. Clark, 810 F. Supp. 613, 615 (E.D. Pa. 1992); see United States v.

Philadelphia, 644 F.2d 187 (3d Cir. 1980) (declining to create civil remedy under 18 U.S.C. §§

241 and 242). However, a plaintiff cannot bring criminal charges against defendants through a

private lawsuit, and these sections also do not give rise to a civil cause of action. U.S. ex rel.

Savage v. Arnold, 403 F. Supp. 172 (E.D. Pa. 1975).4

4 To the extent Horsch intended to assert a non-criminal civil rights conspiracy claim

under § 1983, he has not plausibly alleged that type of claim since the Court ultimately

concludes that he has failed to allege any plausible § 1983 claims.

While Section 1038 provides for a civil cause of action, Horsch does not allege plausibly

how the statute – the Stop Terrorist and Military Hoaxes Act – relates to his claims against

Pennsylvania Probation Officers. The Act criminalizes “engag[ing] in any conduct with intent to

convey false or misleading information under circumstances where such information may

reasonably be believed and where such information indicates that an activity has taken, is taking,

or will take place that would constitute a violation of” numerous predicate criminal acts,

including nuclear, biological, or chemical weapons, aircraft piracy, and sabotage of nuclear

weapons and explosives. 18 U.S.C. § 1038(a)(1). Horsch has not alleged that the Defendants

engaged in any such conduct. Accordingly, the civil liabilities provision of this Section does not

provide a plausible basis for a claim. In short, all claims based upon federal criminal statutes are

not plausible and are dismissed with prejudice.

B. Official Capacity Claims

Horsch has named each Defendant in both their individual and official capacities. Claims

against probation officers named in their official capacities are indistinguishable from claims

against their employer. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-

capacity suits . . . ‘generally represent only another way of pleading an action against an entity of

which an officer is an agent.’”) (quoting Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658,

690, n. 55 (1978)). Pennsylvania’s judicial districts, which are part of the Commonwealth’s

unified system of justice, include their probation and parole departments. See Haybarger v.

Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 198 (3d Cir. 2008). Thus, an official

capacity claim asserted against a probation or parole official is actually a claim against the

Commonwealth of Pennsylvania. Graham, 473 U.S. at 165-66 (“an official-capacity suit is, in

all respects other than name, to be treated as a suit against the entity”).

The Third Circuit has repeatedly held that “Pennsylvania’s judicial districts, including

their probation and parole departments, are entitled to Eleventh Amendment immunity.”

Haybarger, 551 F.3d at 197 (citing Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir.

2005) (holding that Pennsylvania’s Judicial Districts are entitled to immunity from suit under the

Eleventh Amendment) ). As Pennsylvania has not waived its sovereign immunity, and because

Congress has not explicitly abrogated immunity through authorizing legislation, the Eleventh

Amendment operates as a bar to official capacity claims for damages against Cantymagli and

Washington under Section 1983. Accordingly, those claims are dismissed with prejudice.

C. Claims for Injunctive Relief

As relief for his claims, Horsch seeks an order that the Defendants be fired from their

jobs. The Court is not empowered to grant such relief as a remedy under § 1983. Buskirk v.

Pennsylvania Bd. of Prob. & Parole, No. 22-1826, 2022 WL 4542094, at *2 (E.D. Pa. Sept. 28,

2022) (stating “the Court has no authority to terminate the employment of a state employee”)

(citing Teal v. Moody, No. 15-1402, 2019 WL 6702405, at *1 (M.D. Fla. July 10, 2019) (“[T]o

the extent Teal suggests that this Court reprimand the Defendants and/or terminate their

employment, this Court does not have the authority to reprimand state employees and/or

terminate their employment.”); Theriot v. Woods, No. 09-199, 2010 WL 623684, at *4-5 (W.D.

Mich. Feb. 18, 2010) (holding that requesting injunctive relief in the form of ordering the firing

of defendants is “frivolous,” “entirely improper,” and “not available under 42 U.S.C. § 1983”

and that the court “has no authority under 42 U.S.C. § 1983 to . . . terminate the employment of

[the defendants]”); see also, Joseph v. Dep’t of Corr., No. 20-294, 2022 WL 4001116, at *6 (D.

Al. Aug. 9, 2022), report and recommendation adopted, 2022 WL 3996357 (D. Al. Sept. 1,

2022) (holding that “[m]oreover, it is not apparent that the injunctive relief sought – the firing of

Defendants from their positions within DOC – is an available remedy” in a § 1983 claim noting

that Supreme Court has continuously cautioned federal courts from assuming “a greater role in

decisions affecting prison administration.” (citing Shaw v. Murphy, 532 U.S. 223, 230

(2001); Turner v. Safley, 482 U.S. 78, 84–85 (1987)).

Horsch also seeks an order directing the Defendants to stop treating other probationers in

the manner in which he has been treated. This request is also improper. Under 28 U.S.C. §

1654, parties “may plead and conduct their own cases personally or by counsel” in the federal

courts, thus ensuring that a person may conduct his or her own case pro se or retain counsel to do

so. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882 (3d Cir. 1991) (“The statutory right

to proceed pro se reflects a respect for the choice of an individual citizen to plead his or her own

cause.” (quoting Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.

1990) )). While an individual may represent himself pro se, a non-attorney may not represent

other parties in federal court. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir.

1998) (“The rule that a non-lawyer may not represent another person in court is a venerable

common law rule.”), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma

City Sch. Dist., 550 U.S. 516 (2007). Thus, Horsch may not assert claims on behalf of other

probationers. For these reasons, his claims for injunctive relief are dismissed with prejudice.

D. Individual Capacity Claims

1. Claims Involving Revocation of Probation

Horsch asserts individual capacity § 1983 claims against Cantymagli and Washington

alleging they acted improperly in revoking his probation over a dispute about his compliance

with counseling, and amended his revocation in Philadelphia to include a charge of absconding.

He also alleges that Cantymagli testified falsely at a revocation hearing and made an improper

recommendation about his sentence.

Probation and parole officers “are entitled to absolute immunity when they are engaged

in adjudicatory duties.” Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir. 1989). By contrast, “[i]n

their executive or administrative capacity, probation and parole officers are entitled only to a

qualified, good faith immunity.” Id. (citing Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir.

1986)). Adjudicatory acts entitled to absolute immunity are those acts that are “integral to the

judicial process.” Williams v. Consovoy, 453 F.3d 173, 178 (3d Cir. 2006); Thompson v. Burke,

556 F.2d 231, 237 (3d Cir. 1977); see also Sample v. Johnson, No. 21-1301, 2023 WL 2649458,

at *4 (W.D. Pa. Mar. 27, 2023). Examples of adjudicative acts include making decisions to

grant, revoke, or deny parole or probation, see Breslin v. Brainard, No. 01-7269, 2002 WL

31513425, at *7 n.10 (E.D. Pa. Nov. 1, 2002) (citing Wilson, 878 F.2d at 776; Harper, 808 F.2d

at 284), or preparing a report to assist in judicial or administrative decision-making. Williams,

454 F.3d at 178 (citing McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992). Examples of

executive or administrative acts include investigating allegations of parole violations. Wilson,

878 F.2d at 776. “Under this ‘functional’ approach, courts look to the nature of the functions

being performed by the actor in question and evaluate the effect that exposure to liability would

have on an appropriate exercise of that function.” Id.

Cantymagli allegedly took actions to revoke Horsch’s probation because he failed to

attend counseling sessions, even though Cantymagli allegedly knew the counseling service was

at fault and made an improper recommendation about his sentence. Cantymagli and Washington

also allegedly amended Horsch’s violation for a “new case in Philadelphia,” charging him with

absconding. Because these allegations concern adjudicatory duties, and Horsch fails to allege

any act by Cantymagli or Washington that could be construed as an executive or administrative

act, his claims against them are not plausible since the Defendants’ acts in revoking his probation

or recommending a sentence are entitled to absolute immunity.

Horsch’s claim that Cantymagli offered false testimony at his Gagnon hearings is also

not plausible. Individuals are entitled to absolute immunity from civil rights claims based on

testimony in court, including at pretrial hearings. See Rehberg v. Paulk, 566 U.S. 356, 369

(2012) (“[W]e conclude that grand jury witnesses should enjoy the same immunity as witnesses

at trial”); Williams v. Hepting, 844 F.2d 138, 141 (3d Cir. 1988) (stating that witness immunity is

“firmly bottomed in public policy”) (citing Briscoe v. LaHue, 460 U.S. 325, 329-30 (1983)

(holding that under absolute witness immunity a convicted defendant could not state a claim for

damages under § 1983 against a police officer who had allegedly given perjured testimony at the

defendant’s criminal trial)).

2. Religious Discrimination Claim

Horsch also alleges that he was discriminated against because of his race, color, religious

affiliation, and disability. He alleges that Washington violated his First Amendment rights in

November 2022 when she made a derogatory comment about his religion, and both Defendants

violated his right to be treated with dignity under the ADA. To the extent that these claims are

not covered by absolute immunity, that is, they are not based on the Defendants’ adjudicatory

acts in revoking Horsch’s probation, the allegations fail to state plausible claims.

First, Horsch fails to allege any facts concerning his race or color or how those factors

were involved in the revocation of his probation or otherwise. These conclusory allegations are

insufficient to assert a plausible civil rights claim. Iqbal, 556 U.S. at 678. Second, the allegation

that Washington made a derogatory comment about Horsch’s religion is too undeveloped to

allege a plausible equal protection claim based on religious discrimination. To establish an equal

protection violation, a prisoner must allege “that he was treated differently than other similarly

situated inmates, and that this different treatment was the result of intentional discrimination

based on his membership in a protected class.” Mack v. Warden Loretto FCI, 839 F.3d 286 (3d

Cir. 2016) (citing Hassan v. City of New York, 804 F.3d 277, 294, 298 (3d Cir. 2015)). “Persons

are ‘similarly situated’ for purposes of an equal protection claim when ‘they are alike in all

relevant aspects.’” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (emphasis

omitted). Additionally, to state a race-based equal protection claim, a plaintiff must allege that

defendants were motivated by racial animus. W.B. v. Matula, 67 F.3d 484, 503 (3d Cir. 1995)

(citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Pratt v. Thornburgh, 807 F.2d 355, 357

(3d Cir. 1986)). Moreover, an allegation that a defendant made verbal racist remarks does not

state a § 1983 claim because verbal threats or taunts, without more, are insufficient to violate the

Constitution. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple

verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a

protected liberty interest or deny a prisoner equal protection of the laws.”); Abuhouran v. Acker,

No. 04-2265, 2007 WL 603045, at *4 (E.D. Pa. Feb. 22, 2007) (“Although derogatory language

in reference to plaintiff’s race or ethnicity is strong evidence that the conduct in question is

racially or ethnically motivated, it alone cannot support an equal protection claim.”). Rather, the

use of racial or religious epithets alone, though despicable and indefensible, does not amount to

an equal protection violation absent “harassment or some other conduct that deprives the victim

of established rights.” Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999); Mugavero v.

Town of Kearny, No. 12-2439, 2013 WL 3930120, at *3 (D.N.J. July 30, 2013) (“[L]ike

offensive statements, the display or drawing of offensive imagery does not, on its own, amount

to a constitutional violation.”).

While Horsch alleges a derogatory statement about his religion, he does not allege the

context for Washington’s statement. It is thus unclear whether he asserts that the comment about

his religion was a substantial or motivating factor in the decision to revoke of his probation, an

act for which Washington is absolutely immune. He also fails to allege he was treated

differently than other similarly situated inmates, and that this different treatment was the result of

intentional discrimination based on his membership in a protected class. To the extent the

statement was not part of the revocation, Horsch has failed to allege that he suffered an adverse

action as a result of Washington’s statement.

3. ADA Claim

Finally, Horsch’s reference to the ADA as a basis for a claim is also undeveloped. Title

II of the ADA prohibits a public entity from discriminating against a qualified individual with a

disability on the basis of disability. See 42 U.S.C. § 12132 (“no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs or activities of a public entity, or be subjected to

discrimination by any such entity”); Douris v. Dougherty, 192 F. Supp. 2d 358, 368 (E.D. Pa.

2002). Although not a well-developed area of the law in this Circuit, some courts have held or

implied that the ADA extends its anti-discrimination guarantees to the parole/probation context.

Thompson v. Davis, 295 F.3d 890, 898 (9th Cir. 2002) (“we held that the ADA applies to state

correctional systems. . . . The same holds true in the parole context.” (internal citation omitted));

Taylor v. Henderson, 632 F. App’x 70, 75 (3d Cir. 2015) (per curiam) (citing Thompson and

concluding that “Taylor’s allegation that the [Parole] Board relied on his history of substance

abuse is sufficient at the pleading stage” to allege a plausible ADA § II claim); see also Webber

v. Pennsylvania Bd. of Prob. & Parole, 199 F. App’x 186, 188 (3d Cir. 2006) (per curiam)

(agreeing that appellees were entitled to summary judgment on Webber’s ADA claims that he

was denied parole in July 2003 based on a disability or perceived disability).

To allege a plausible claim for violation of Title II of the ADA, the plaintiff must show:

(1) that he is a qualified individual with a disability; (2) that he was either excluded from

participation in or denied the benefits of some public entity’s services, programs or activities, or

was otherwise discriminated against by the public entity; and, (3) that such exclusion, denial of

benefits or discrimination was by reason of the plaintiff’s disability. Douris, 192 F. Supp. 2d at

368. With respect to the first element, the ADA defines “disability” as (a) a physical or mental

impairment that substantially limits one or more of the major life activities of such individual;

(b) a record of such an impairment; or (c) being regarded as having such an impairment. 42

U.S.C. § 12102(2). Major life activities include, but are not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Id.

§ 12102(2)(A). With the passage of the Americans with Disabilities Act Amendments Act,

Congress declared that “[t]he definition of disability shall be construed in favor of broad

coverage of individuals under this Act, to the maximum extent permitted by the terms of this

Act.” Pub. L. No. 110–325, §§ 2(b)(1)-(6), 3(2)(a), § 4(a), 122 Stat. 3553, 3555. Additionally,

the ADAAA requires a “less searching analysis” of whether a plaintiff is “substantially limited.”

Kravits v. Shinseki, No. 10–861, 2012 WL 604169, at *7 (W.D. Pa. Feb. 24, 2012).

Horsch fails to allege facts to show that he is a qualified individual with a disability.

While he references the problem with scheduling psychiatric counseling and completing a mental

health evaluation as allegedly improper bases for the Defendants’ adjudicative act of revoking

his probation, he has failed to provide facts indicating he has a physical or mental impairment

that substantially limits a major life activity, and that he suffered disability discrimination based

on an act for which the Defendants are not absolutely immune. Accordingly, the ADA claim

must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Horsch’s Complaint because his claims

are not plausible as pled. His claims based on the revocation of his parole will be dismissed in

part with prejudice to the extent the claim is based on adjudicatory acts by the Defendants in

revoking his parole. Horsch will be permitted to file an amended complaint if he is able to assert

a claim against the Defendants based on a non-adjudicatory act they took in allegedly revoking

his parole. The religious discrimination and disability discrimination are also dismissed without

prejudice and Horsch will be granted leave to file an amended complaint if he is capable of

alleging additional facts to address the defects the Court has identified in these claims. The

balance of this claims are dismissed with prejudice. An appropriate Order will be entered

separately.

BY THE COURT:

/s/ Jeffrey L. Schmehl

JEFFREY L. SCHMEHL, J.