# HORSCH v. CANTYMAGLI

> District Court, E.D. Pennsylvania · April 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10407042

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** April 3, 2024
- **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/10407042

## How later opinions describe it (automated extraction)

- stating that witness immunity is “firmly bottomed in public policy”
- 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

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10407042. Public record. Not legal advice.