United States District Court, W.D. North Carolina, Asheville Division
DAVID E. TALBERT, Plaintiff,
TODD CARTER, Parole Probation Officer, Defendant.
FRANK D. WHITNEY, District Judge.
THIS MATTER is before the Court on initial review of Plaintiff's Complaint, filed under 42 U.S.C. § 1983, (Doc. No. 1); on Plaintiff's Application to Proceed in Forma Pauperis, (Doc. No. 2); on Plaintiff's Motion to Appoint Counsel, (Doc. No. 3); and on Plaintiff's Motion Requesting Copies of Civil Procedure and Federal Rules of Evidence and Criminal Rules, (Doc. No. 4).
The Court has examined Plaintiff's inmate trust fund account, which shows that as of April 30, 2014, Plaintiff had $0.00 in his account. (Doc. No. 6 at 1). Plaintiff lacks sufficient resources with which to pay the filing fee. Therefore, Plaintiff's application to proceed in forma pauperis shall be granted for the limited purpose of this initial review.
Pro se Plaintiff David Talbert filed this action on April 28, 2014, naming as the sole Defendant his former probation officer Defendant Todd Carter, a parole/probation officer with the North Carolina Department of Public Safety in Buncombe County, North Carolina. Plaintiff's claim against Defendant arises out of Defendant's petition for the revocation of Plaintiff's probation on his conviction for failing to register as a sex offender. The relevant background facts are as follows:
On September 20, 2010, Plaintiff pled guilty in Buncombe County Superior Court to one count of failure to register as a sex offender. See State v. Talbert , 727 S.E.2d 908 ( N.C. Ct. App. 2012). The trial court imposed a suspended sentence, and Plaintiff was placed on supervised probation for 24 months, subject to certain conditions of probation. Id. at 909. As one of the terms of his probation, Plaintiff was required to abide by North Carolina's sex offender program requirements, which included residing at a residence to be approved by his probation officer. Id.
While on probation for the failure to register conviction, Plaintiff was convicted of felony larceny after breaking and entering in Yancey County, and he was sentenced to ten to twelve months' active imprisonment. Id . He was thereafter incarcerated at Avery-Mitchell Correctional Institution, and his scheduled release date was April 29, 2011. Id . Defendant Carter, Plaintiff's probation officer, visited Plaintiff at the prison that day, and Plaintiff informed Defendant that he had not yet found a place to live upon his release. Id . Defendant placed Plaintiff in handcuffs, drove him to the Buncombe County Detention Center, and petitioned to have Plaintiff's probation revoked because Plaintiff had not obtained a place to live once he was released from prison. See (Doc. No. 1 at 6). The trial court subsequently revoked Plaintiff's probation and activated his sentence on the conviction for failing to register as a sex offender, finding that Plaintiff had willfully violated the terms of his probation by failing to find a suitable residence upon being released from prison. State v. Talbert , 727 S.E.2d at 910.
Plaintiff appealed the trial court's decision and on July 17, 2012, the North Carolina Court of Appeals reversed the trial court's revocation of Plaintiff's probation, finding that "the trial court abused its discretion by concluding that defendant's failure to secure suitable housing before his release was willful." Id. at 911. The Court of Appeals stated that Plaintiff's "probation was revoked because of circumstances beyond his control, " noting Plaintiff's "lack of personal resources-social, familial, and financial-[which] severely limited his ability to obtain a suitable residence while incarcerated." Id . The Court of Appeals further found that Plaintiff's circumstances "limited his ability to stay with family until he found a more permanent residence"; that Plaintiff "had no assets and no job, which alone presents a very real obstacle to renting a hotel room or apartment"; and because he is a sex offender, it was unlikely that he would be allowed to stay at a shelter or mission because children often stay at those places. See id.
Plaintiff contends in this action that he was wrongfully incarcerated and that his "rights were violated" from around April 29, 2011, until August 8, 2012, based on Defendant's alleged wrongful petition for the revocation of Plaintiff's probation. (Doc. No. 1 at 3). As relief, Plaintiff seeks from Defendant damages of $100 per day that he was allegedly wrongfully incarcerated. (Id. at 5).
II. STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is "frivolous or malicious [or] fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires an initial review of a "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, " and the court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.
In its frivolity review, this Court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams , 490 U.S. 319, 327-28 (1989). Furthermore, a pro se complaint must be construed liberally. Haines v. Kerner , 404 U.S. 519, 520 (1972). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his Complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs. , 901 F.2d 387 (4th Cir. 1990).
As noted, in this § 1983 action, Plaintiff has sued his former probation officer Defendant Todd Carter based on Defendant's petition to revoke Plaintiff's probation. Petitioner is not entitled to bring this action against Defendant Carter because, as a probation officer, Defendant is entitled to immunity against Plaintiff's claim against him for damages. See Douglas v. Muncy , 570 F.2d 499, 501 (4th Cir. 1978) (where the plaintiff alleged that his parole officer arbitrarily enforced the conditions of his parole, stating that "[w]ith respect to the § 1983 claims, the district court was correct in its conclusion that the members of the Parole Board were immune from damages, and [Defendant], in his capacity as a parole officer, was also immune from such liability") (internal citations omitted); Holmes v. Crosby , 418 F.3d 1256, 1258 (11th Cir. 2005) (noting that "parole officers enjoy immunity for testimony given during parole revocation hearings when they act within the scope of their duties"); Demoran v. Witt , 781 F.2d 155, 157 (9th Cir. 1986) (parole officers ...