GILES, District Judge.
Plaintiff, a criminal defendant, has sued his former federal probation officer under 42 U.S.C. § 1983, alleging that on June 23, 1980, she wrongfully petitioned the sentencing judge for a warrant for his arrest for probation violation when she knew or should have known that his term of probation had already expired.
A detainer issued and plaintiff was placed in federal custody. He contested the detainer and moved on November 5, 1980, to vacate his sentence pursuant to 28 U.S.C. § 2255 on the basis that there was no subsisting probation. By response filed November 17, 1981, the United States Attorney's Office did not oppose the motion. The motion was then granted by Judge Clarence E. Newcomer on November 20, 1981, rendering moot the violation of probation charge.
The probation officer has moved for summary judgment in the instant complaint asserting that she is not personally bound by the actions of the United States Attorney in failing to oppose the motion to vacate, that she is immune from a suit for damages and, finally, that as of June 23, 1980 the federal probation period had not expired because plaintiff's intervening incarcerations in state court jurisdictions had tolled it.
For the purposes of this case it is assumed that plaintiff's period of probation commenced May 19, 1975.
The first issue to be decided is whether defendant Lynott is precluded from raising individual defenses by the U.S. Attorney's failure to oppose Hall's motion to vacate his sentence. Since Lynott is being sued for damages under § 1983 upon charges that she acted in bad faith and without probable cause, I find that she, personally, is not bound by the Government's decision not to contest Hall's motion to vacate his sentence. It would be inconceivable that a probation officer acting within the scope of her duties could be found liable for a subsequent decision of the U.S. Attorney's Office, in this case made over a year after the initial request for a detainer was filed.
The question remains whether there had been a tolling of Hall's probation at the time defendant Lynott petitioned Judge Newcomer for the issuance of a warrant for Hall's arrest. It is undisputed that if a defendant is in violation of his probation, it tolls the running of the term. See United States v. Green, 429 F. Supp. 1036, 1038 (W.D. Tex. 1977). As stated in Green, "It would be unreasonable to conclude that a probationer could violate conditions of probation and keep the clock running at the same time, thereby annulling both the principle and purpose of probation." Green at 1038. See also United States v. Gerson, 192 F. Supp. 864 (E.D. Tenn. 1961), aff'd 302 F.2d 430 (6th Cir. 1962). In United States v. Lancer, 508 F.2d 719 (3d Cir. 1975), cert. denied, 421 U.S. 989, 95 S. Ct. 1992, 44 L. Ed. 2d 478 (1975), the court stated that "in the absence of express direction by the sentencing court concerning the time when probation is to commence (and its relation to intervening jail time, parole, etc.), probation would be tolled during periods [when the probationer was in jail] and would resume upon release from confinement." Lancer at 733 n.42. Periods of confinement or custody may also include time spent in jail for offenses unrelated to the original conviction. Id. at 733-34.
Since probation commenced May 19, 1975 and the petition for the detainer was dated June 23, 1980, defendant would have to show that Hall's probationary period was tolled for at least thirty-five (35) days in order for him to have still been on probation as of June 23, 1980 (12 days in May plus 23 days in June). See Plaintiff's Supplemental Memorandum at p. 1-2.
Pursuant to the court's order of October 4, 1982, defendant Lynott submitted an affidavit to show the period of time which plaintiff was allegedly in violation of the terms and conditions of his probation by reason of his arrests and confinement in various correctional facilities.
Relying upon Lancer, defendant asserts that this court may consider for purposes of tolling the periods of time Hall spent in custody, transfers from one correctional facility to another, and time involved for transfers to the probable cause hearings for federal probation violations.
Plaintiff, on the other hand, contends, inter alia, that Lancer, cannot be read to include any periods of confinement but only those pursuant to a conviction and sentence.
Plaintiff's construction of Lancer is too narrow. If a probationer, because of his own wrongdoing, is outside the supervisory jurisdiction of probation authorities, see United States v. Workman, 617 F.2d 48, 51 (4th Cir. 1980), or if he justifiably spends time in custody for a violation of probation, be it in a state or federal institution, the time is not counted as time spent on probation. See Lancer at 734; United States v. Gelb, 175 F. Supp. 267, 269 (D.D.C. 1959), aff'd, 269 F.2d 675 (2d Cir. 1959), cert. denied, 361 U.S. 822, 4 L. Ed. 2d 66, 80 S. Ct. 66 (1959) (intervening federal confinement); United States v. Gerson, (intervening state confinement). The fact that Hall's probation was not "revoked" due to his various arrests, does not, as plaintiff contends, distinguish this case from Lancer. Revocation of probation is not essential for tolling. Rather, it is the violation of probation regardless of whether the violation leads to time spent in custody. See, e.g., United States v. Green, 429 F. Supp. at 1037. See also U.S. v. Workman at 51.
Even if plaintiff were correct in his assertion that probation is tolled only upon periods of confinement pursuant to a conviction and sentence, it is readily seen from the undisputed affidavit submitted by defendant that Hall's probation was tolled more than thirty-five (35) days due to arrests for possession of stolen property and forgery offenses which led subsequently to conviction. These were clear probation violations. I refer specifically to the following periods: 1/20/77 - 3/16/77 (55 days) spent in jail in Monmouth County, New Jersey; 4/24/78 - 6/28/78 (65 days) spent in jail in Delaware County, Pennsylvania; 7/26/78 - 8/4/78 (9 days) spent in jail in Delaware County, Pennsylvania; and 8/4/78 - 10/27/78 (85 days) spent in jail in Monmouth County.
Taking only these periods of time into account, Hall's probation was tolled at least two hundred fourteen (214) days while he was rightfully in custody for charges relating to offenses committed in Monmouth County.
Plaintiff's contention that his periods of incarceration were not the result of sentences imposed by a court but were the result of being unable to post bail on the criminal charges, see Exhibit A to Plaintiff's Supplemental Memorandum at p.1, is without merit. Plaintiff concedes that he was twice convicted of state crimes while on federal probation.
Id. The fact that he was not sentenced to jail as a result of these convictions, does not mitigate his violations of probation nor the time justifiably spent in the custody of government authorities pursuant to the crimes committed.
Thus, taking into consideration only those periods in which Hall was in custody related to charges which were not dismissed but which subsequently led to a conviction, his probationary period was extended approximately two hundred and fourteen (214) days beyond May 9, 1980. Accordingly, defendant Lynott did not wrongfully recommend to Judge Newcomer that a detainer issue for Hall's arrest for probation violation on June 23, 1980.
I also find that Lynott is entitled to quasi-judicial immunity from damages in this civil rights suit. See Thompson v. Burke, 556 F.2d 231, 236 (3d Cir. 1977) (probation officers entitled to quasi-judicial immunity when engaged in adjudicatory duties; cf. Robinson v. Largent, 311 F. Supp. 1032, 1033 (E.D. Pa. 1970) (initiation of detainer warrant when parolee has been charged with having committed a crime, is quasi-judicial function); Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970), cert. denied, 403 U.S. 908, 29 L. Ed. 2d 685, 91 S. Ct. 2217 (1971) (a probation officer preparing and submitting a probation report in a criminal case is performing a "quasi-judicial" function and is entitled to similar, if not same, immunity accorded to judges for acts done in exercise of their judicial functions). A probation officer, like a parole officer, is acting as a judicial officer if he or she is performing discretionary duties within the framework of a quasi-judicial process. See Robinson at 1033. When Lynott filed a petition seeking the arrest of Hall she was performing a discretionary function pursuant to her official law enforcement duties as a probation officer.
Since I have found that Lynott is entitled to quasi-judicial immunity, it is unnecessary to decide whether she acted in bad faith and without probable cause. See Thompson v. Burke, 556 F.2d at 238. See also Coggins v. Carpenter, 468 F. Supp. 270, 283 (E.D. Pa. 1979).
Defendant Lynott is therefore entitled to entry of summary judgment in her favor.
AND NOW, this 28th day of January, 1983, it is hereby ORDERED that defendant's motion for summary judgment is GRANTED and the complaint is DISMISSED with prejudice. JUDGMENT is entered in favor of defendant and against plaintiff.