DLD-012 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2200 __________

MICHAEL CARTER, Appellant

v.

MEGAN HAYES, Probation Officer;

ADAMS COUNTY PROBATION DEPARTMENT ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1:23-cv-00312) District Judge: Honorable Yvette Kane ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 19, 2023 Before: JORDAN, PORTER, and PHIPPS, Circuit Judges

(Opinion filed November 6, 2023) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Michael Carter, proceeding pro se and in forma pauperis, appeals the order of the

District Court dismissing his complaint. For the following reasons, we will summarily

affirm the District Court’s dismissal.

I

Carter filed a federal civil rights action as a convicted state prisoner against his

former probation officer, Megan Hayes, and her employer, Adams County Probation

Department, proceeding pro se and in forma pauperis. Broadly construed, the complaint

alleges the following: on November 26, 2018, Carter appeared at a probation revocation

hearing after failing a urinalysis test. When the presiding judge asked Hayes if Carter had

received a drug and alcohol screening, Hayes falsely responded to the Judge that no such

evaluation had taken place. Carter alleges that because of Hayes’ false statement, the

judge revoked his probation and returned him to prison instead of sending him to a

rehabilitation facility. After he was released from prison, his drug addiction spiraled out

of control, causing the vehicular homicide for which he is presently imprisoned and for

which he blames Hayes. DC ECF 1. Carter seeks both damages and relief from his

current sentence.

Pursuant to 28 U.S.C. § 1915A, Carter’s complaint was screened by a magistrate

judge, who recommended dismissal without leave to amend because both defendants

were immune to suit, and because the complaint was barred by the statute of limitations.

DC ECF 11. Carter filed objections in which he argued, inter alia, that because of the

2 continuing violation doctrine his complaint was not time-barred. DC ECF 21. The

District Court adopted the Magistrate Judge’s Report and Recommendation and

dismissed the complaint without leave to amend. DC ECF 22. On appeal, Carter contends

that the District Court erred when it dismissed his complaint without leave to amend. CA

ECF 1.

II

We have jurisdiction pursuant to

. In considering a dismissal

pursuant to

(e)(2) and 1915A, we apply the same de novo standard of

review as when reviewing dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6). See Allah v. Seiverling,

, 223 (3d Cir. 2000).

We agree with the District Court that both defendants are protected by immunity.

Probation Officer Hayes is protected by absolute witness immunity, as she was offering

testimony in the context of a judicial proceeding. McArdle v. Tronetti,

(3d Cir. 1992); see also Briscoe v. LaHue,

(1983). Adams

County Probation Department, meanwhile, enjoys complete sovereign immunity as an

arm of the state. Haybarger v. Lawrence Cty. Adult Probation & Parole,

(3d Cir. 2008).

Even were that not the case, Carter’s complaint is time barred. The statute of

limitations for Carter’s claim under

is two years. Bougher v. University

of Pittsburgh,

(3d. Cir. 1989). Carter filed his initial complaint in

3 February 2023, more than four years after Probation Officer Hayes’s testimony. DC ECF

1.

Carter argues that, under the continuing violation doctrine, the statute of

limitations has not even begun to run because his incarceration is a continuing violation

that has yet to end. He is mistaken: a continuing violation “is occasioned by continual

unlawful acts, not continual ill effects from an original violation.” Montanez v. Secretary

Pennsylvania Dept. of Corrections,

(3d Cir. 2014) (cleaned up).

In light of the flaws in Carter’s complaint, we agree with the District Court that

allowing Carter leave to file an amended complaint would be futile. Grayson v. Mayview

State Hosp.,

(3d Cir. 2002).1

III

For the foregoing reasons, the appeal does not present a substantial question, so

we will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.

1 To the extent that Carter is challenging his present incarceration, § 1983 is the wrong vehicle. In this case, the only means of relief in federal court would be a habeas corpus petition under

. See Preiser v. Rodriguez,

(1973). 4