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Faber v. Smith

United States District Court, W.D. Michigan, Southern Division

December 7, 2017

Robert Andrew Faber, Plaintiff,
v.
Terrance Smith, Defendant.

          OPINION AND ORDER GRANTING MOTION TO DISMISS

          Paul L. Maloney United States District Judge.

         Robert Faber filed this lawsuit against his probation officer, Terrance Smith. Smith has filed a motion to dismiss. (ECF No. 33.) Some of Faber's claims are barred by quasi-judicial immunity and others are barred by the holding in Heck v. Humphreys. Other claims simply fail to state a claim for which a court may grant relief. Therefore, the motion will be granted.

         This motion is ripe for resolution. Faber is currently incarcerated, although the events giving rise to this complaint occurred while Faber was on supervised release. Smith served Faber with the motion by mailing it to him on October 4, 2017. (ECF No. 35.) On November 2, 2017, the Clerk docketed a letter from Faber indicating that he had not received the motion and brief. (ECF No. 42.) Smith then filed a certificate of service indicating that the motion and brief was again mailed to Faber. (ECF No. 43.) On November 6, 2017, the Clerk docketed a motion and brief sent by Faber titled "Plaintiff's Motion to Dismiss Defendant's Motion to Dismiss Bivins Claim (Answere) and Abuse of Power by Defendant Terrance Smith." (ECF Nos. 45 and 46.) It is obvious from the substance of the motion and brief that Faber had received Smith's motion to dismiss. Faber has since filed two supplements to his motion and answer. (ECF Nos. 49 and 51.) Smith filed a reply. (ECF No. 52.) Faber has filed a sur-reply. (ECF No. 55.)

         I.

         Under the notice pleading requirements, a complaint must contain a short and plain statement of the claim showing how the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); see Thompson v. Bank of America, N.A., 773 F.3d 741, 750 (6th Cir. 2014). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A defendant bringing a motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether a cognizable claim has been pled in the complaint. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988).

         To survive a motion to dismiss, a plaintiff must allege facts sufficient to state a claim for relief that is “plausible on its face” and, when accepted as true, are sufficient to “raise a right to relief above the speculative level.” Mills v. Barnard, 869 F.3d 473, 479 (6th Cir. 2017) (citation omitted). “The complaint must 'contain either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.'” Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (citation omitted).:A claim is plausible on its face if the 'plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007) (citations omitted). When considering a motion to dismiss, a court must accept as true all factual allegations, but need not accept any legal conclusions. Ctr. for Bio-Ethical Reform, 648 F.3d at 369. Naked assertions without further factual enhancement, formulaic recitations of the elements of a cause of action, and mere labels and conclusions will be insufficient for a pleading to state a plausible claim. SFS Check, LLC v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014) (citations omitted).

         II.

         The complaint is not a model of clarity. Because Faber is proceeding without an attorney, this Court must liberally construe his pleadings. Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); see Owens v. Keeling, 461 F.3d 763, 776 (6th Cir. 2006) (citing Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005)). The Court has endeavored to identify the claims raised in the complaint. The Court has consulted Faber's subsequent filings seeking clarification of the claims in the complaint.

         Faber raises four claims in his complaint. First, Faber asserts that, in May and June 2016, Smith falsely accused Faber of using controlled substances. Faber asserts Smith tampered with a drug test cup so that a positive result was returned. Faber also asserts Smith made Faber wear a patch of some sort. Second, Faber alleges Smith interfered with Faber's attempts to secure housing and leave the halfway house. And, because of Smith's interference, Faber lost money. Farber's third and fourth claims overlap. Faber alleges Smith harassed Faber's boyfriend, Tylyn Geiszel, caused Geiszel to be homeless, and has interfered with their freedom of religion.

         III. Quasi-Judicial Immunity

         At all times, and for all of the specific actions taken by Smith of which Farber complains, Smith was acting in his capacity as Farber's supervising officer while Farber was on supervised release. Based on the allegations in the complaint, it appears that the actions of which Faber complains were all performed by Smith while he was investigating whether Faber was complying with the terms of his supervised release. In this circuit, "a probation officer performing duties to ensure a probationer was complying with the terms of probation [is] entitled to quasi-judicial immunity." Loggins v. Franklin Cty., Ohio, 218 Fed.Appx. 466, 476 (6th Cir. 2007) (citing Balas v. Leishman-Donaldson, No. 91-4073, 1992 WL 217735, at *5 (6th Cir. Sept. 9, 1992)); but see Victory v. Pataki, 814 F.3d 47, 66-67 (2d Cir. 2016) (holding that parole officers are not entitled to immunity for the preparation of false reports and the subsequent recommendations). In his response, Faber argues that the actions about which he complains constitute an abuse of authority and that Smith should not be afforded immunity and must be held accountable. Although the accusations Faber has made against Smith are serious, the law does not allow Faber to sue Smith for damages for those actions.

         Accordingly, Faber's claims arising from the drug tests, Smith's visits to the residence, and Smith's interactions with Geiszel must be dismissed as all of those actions were investigations to determine if Faber was complying with the terms of his supervised release.

         IV. Failure to State a Claim

         Assuming, for the sake of argument only, that some claims survive Smith's quasi-judicial immunity, the Court concludes that ...


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