Opinion
C. A. 4:19-2318-MGL-BM
09-13-2021
Larry James Tyler, Plaintiff, v. James Bogle, Sr.; Paul M. Burch; Tony Chavis, Defendants.
REPORT AND RECOMMENDATION
Bristow Merchant, United States Magistrate Judge.
This is a civil action filed by the Plaintiff, Larry James Tyler, pro se. Plaintiff is a frequent filer of litigation in this Court and is currently detained at the Darlington County Detention Center (DCDC), where he is awaiting civil commitment proceedings pursuant to the South Carolina Sexually Violent Predator Act (SVPA), SC Code Ann. §§ 44-48-10 through 44-48-170. See Complaint, ECF No. 1 at 2, 5; see also Tyler v. Byrd. No. 4:16-00400-MGL-BM, 2016 WL 4414834, at * 1 (D.S.C. Jul. 27, 2016), adopted by 2016 WL 4374982 (D.S.C. Aug. 16, 2016).
A district court may take judicial notice of materials in the court's own files from prior proceedings. See United States v. Parker. 956 F.2d 169, 171 (8th Cir. 1992) [holding that the district court had the right to take judicial notice of a prior related proceeding]; see also Fletcher v. Bryan. 175 F.2d 716 (4th Cir. 1949).
Plaintiffs Complaint is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B): In re Prison Litigation Reform Act. 105 F.3d 1131, 1134 (6th Cir. 1997)[pleadings by non-prisoners should also be screened]. Under established local procedure in this judicial district, a careful review has been made of the pro se complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez. 504 U.S. 25 (1992); Neitzke v. Williams. 490 U.S. 319 (1989); Haines v. Kerner. 404 U.S. 519 (1972); Nasim v. Warden. Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); and Todd v. Baskerville. 712 F.2d 70 (4th Cir. 1983). Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez. 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams. 490 U.S. 319.
Further, while this Court is also required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys, Erickson v. Pardus. 551 U.S. 89, 94 (2007Yquoting Estelle v. Gamble. 429 U.S. 97, 106 (1976)), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal court. Weller v. Dep't of Soc. Servs.. 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Plaintiffs Allegations
Plaintiff is once again challenging his pending sexually violent predator (SVP) proceedings, arguing that the Defendants have falsely imprisoned him and denied him due process. Complaint. ECF No. 1 at 6. He alleges that on August 27, 2015, while he was still imprisoned within the South Carolina Department of Corrections (SCDC), the state multi-disciplinary team completed a Sexual Predator Referral Form and found that he satisfied the definition of a sexually violent predator (SVP), such that a review by the Prosecutor Review Committee was warranted. He asserts that the Prosecutor Review Committee found probable cause that Plaintiff had been convicted of a sexually violent offense and suffered from a mental abnormality or personality disorder and needed to be confined for long-term treatment. Thereafter, Defendant Assistant Attorney General James Bogle, Jr. allegedly filed a petition at the Darlington Courthouse pursuant to the SVPA and Defendant Judge Paul M. Burch allegedly signed an order on October 16, 2015, to designate Plaintiff an SVP under the statute. Plaintiff states that, thereafter, on October 26, 2015, he was brought before Judge Burch and ordered to undergo SVP evaluations. Although he was represented by an attorney at the hearing, Plaintiff asserts that he only met his attorney fifteen minutes before the hearing and did not know about the earlier proceedings such that he did not get an opportunity to defend himself. Plaintiff was released from SCDC and taken to the DCDC, where he has remained since October 30, 2015. See ECF Nos. 1, 1-4, 1-6.
Plaintiff complains that the multi-disciplinary team had no evidence that his four sex convictions were violent such that any finding that he is an SVP is invalid. He further asserts that he was not under the SVP statute when he was convicted of his crimes. Plaintiff claims that he has been trying to address his alleged wrongful commitment in state court, but is indigent and has been unable to serve the summonses on the Defendants and has written to the South Carolina Supreme Court. He also complains that DCDC does not have facilities to allow for legal research and that the Director will not give indigent inmates a pen or pencil to do legal work. See ECF Nos. 1, 1-2, 1-3, 1-4, 1-6. Plaintiff requests declaratory, injunctive, and monetary relief. See ECF Nos. 1 and 1-5.
Under the SVPA, "sexually violent offense" includes:
(p) criminal solicitation of a minor, as provided in Section 16-15-342, if the purpose or intent of the solicitation or attempted solicitation was to:
(i) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5); or
(ii) perform a sexual activity in the presence of the person solicited.S.C. Code Ann. § 44-48-30(2)(p).
Discussion
Initially, the undersigned is constrained to note that Plaintiffs claims for monetary damages are subject to summary dismissal based on the United States Supreme Court's decision in Heck v. Humphrey. 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that a state prisoner's claim for damages is not cognizable under § 1983 where success of the action would implicitly question the validity of the conviction or duration of a sentence, unless the prisoner can demonstrate that the conviction or sentence has been previously invalidated. Heck, 512 U.S. at 486-487. Heck bars both a claim that the plaintiff is being held past his mandatory parole release date as to his state convictions as well as his civil confinement pending assessment as an SVP. Cf. Huff v. Attorney General of Va.. No. 3:07-744, 2008 WL 4065544 (E.D.Va. Aug. 26, 2008), affd, 323 Fed.Appx. 293 (4th Cir. 2009); see also Haynesworth v. Cothran. C. A. No. 2:12-2466-CMC-BHH. 2012 WL 4753896, at *2 (D.S.C. Sep. 27, 2012) [Heck applies to civil-rights challenges to SVP orders], adopted by. 2012 WL 4753893 (Oct. 4, 2012); Wood v. Wood El. No. Civ.A. 05-1447 RBK, 2005 WL 1899335, at *4 (D.N.J. Aug.5, 2005) [rejecting a § 1983 challenge to an involuntary civil commitment because the involuntary commitment had not been invalidated as required by Heck].
Heck also acts to bar Plaintiffs claims for injunctive and declaratory relief. See Wilkinson v. Dotson. 544 U.S. 74, 81-82 (2005) ["[A] state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit ...— if success in that action would necessarily demonstrate the invalidity of confinement or its duration."]; Mobley v. Tompkins, 473 Fed.Appx. 337 (4th Cir. 2012) [applying Heck in a civil action seeking damages and injunctive relief relating to federal convictions] (citing Heck at 586-87; Harvey v. Horan. 278 F.3d 370, 375 (4th Cir. 2002), abrogated on other grounds by Skinner v. Switzer. 562 U.S. 521 (2011)).
Moreover, even if Plaintiff s claims are not barred by Heck, federal courts are not authorized to interfere with a State's pending criminal proceedings absent extraordinary circumstances. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Cinema Blue of Charlotte. Inc. v. Gilchrist. 887 F.2d 49, 50-53 (4th Cir. 1989). The Fourth Circuit has held that the Younger abstention doctrine applies "to noncriminal judicial proceedings when important state interests are involved." Harper v. Public Serv. Comm'n of W.Va.. 396 F.3d 348, 351 (4th Cir. 2005)[property law concerns] (citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). The South Carolina Supreme Court has upheld the SVPA and its procedures as a constitutionally valid exercise of the State's power to protect its citizens from sexually violent predators; In re: Luckabaueh. 568 S.E.2d 338, 348 (S.C. 2002); and the Court of Appeals of South Carolina has stated that protecting minors from sexual predators is an important state interest. See State v. Reid. 679 S.E.2d 194, 201 n. 6 (S.C.Ct.App. 2009)[discussing South Carolina's important public policy of protecting minors from harm in the context of an internet solicitation of a minor case]. Other circuits have also applied Younger to pending civil commitment proceedings. See Sweeney v. Bartow. 612 F.3d 571, 572 (7th Cir. 2010)["The principles of Younger are applicable to habeas petitions from pending [Wisconsin] sexually violent person commitments."]; Smith v. Plummer. 458 Fed.Appx. 642, 643 (9th Cir. 2011) [Younger doctrine extends to state civil judicial proceedings where there is an ongoing state-initiated judicial proceeding, the proceeding implicates important state interests, the federal litigant is not barred from litigating federal constitutional issues in the state proceeding, and federal court action would enjoin the proceeding or have the practical effect of doing so, Le., would interfere in a way that Younger disapproves].
Plaintiff claims that he may now challenge his S VP classification in federal court. However, a finding of probable cause at the probable cause hearing does not finally decide the question of whether a detainee is a sexually violent predator. In re Care & Treatment of Beaver, 642 S.E.2d 578, 580 n. 2 (S.C. 2007)(citing S.C.Code Ann. §§ 44-48-80 through 44-48-90)). On finding probable cause, the detainee is transferred to an appropriate secure facility for an evaluation as to whether he, in fact, suffers from a mental abnormality or personality disorder that meets the statutory criteria for commitment under the Act. Id. The purpose of this evaluation is to determine whether a potential predator can be safely released into society, and is mandated by the SVPA. It is not an adversarial proceeding, and there is no requirement that the detainee be represented by an attorney during such an evaluation. Cf. United States v. Bondurant. 689 F.2d 1246, 1249 (5th Cir. 1982) [defendant has no right to have counsel present in examining room]; Hess v. Macaskill, No. 94-35446, 1995 WL 564744, at * 3 (9th Cir. Sept.20, 1995) [No constitutional right to have counsel physically present in the room during the course of the examination].
Courts have consistently upheld the constitutionality of the SVPA and determined it is a non-punitive form of civil commitment. See, e.g., Seling v. Young. 531 U.S. 250 (2001); Kansas v. Hendricks. 521 U.S. 346 (1997); In re Matthews. 550 S.E.2d 311, 315-17 (S.C. 2001)[citing the United States Supreme Court's decision in Hendricks as "controlling" and concluding the SVPA is civil rather than criminal and that confinement under the SVPA is non-punitive], cert, denied. 535 U.S. 1062 (2002)
In Cinema Blue of Charlotte. Inc.. the United States Court of Appeals for the Fourth Circuit ruled that federal district courts should abstain from constitutional challenges to state judicial proceedings, no matter how meritorious, if the federal claims have been or could be presented in an ongoing state judicial proceeding. Id. at 52. Moreover, the Anti-Injunction Act, 28 U.S.C. § 2283, expressly prohibits this court from enjoining such proceedings. See Bonner v. Circuit Court of St. Louis. 526 F.2d 1331, 1336 (8th Cir. 1975) (en banc)["Congress and the federal judiciary have consistently recognized that federal courts should permit state courts to try state cases, and that, where constitutional issues arise, state court judges are fully competent to handle them subject to Supreme Court review."]; cf. District of Columbia Court of Appeals v. Feldman. 460 U.S. 462, 476 (1983)[federal courts cannot review state court proceeding in appellate sense]; Gurley v. Superior Court of Mecklenburg Cnty., 411 F.2d 586, 587-88 & nn.2-4 (4th Cir. 1969) [federal courts may not issue writs of mandamus against state courts].
Plaintiff may be attempting to argue that he has exhausted his available state remedies by filing grievances with the attorney general and Judge Burch. ECF No. 1 at 7-8. However, Plaintiff has not alleged that all of his SVP proceedings have been completed. After the probable cause determination by a state civil judge and evaluation by professional specialists, § 44-48-80, the detained person has the opportunity to challenge "at trial" any unfavorable results of the evaluation before a state civil judge. S.C.Code Ann. § 44-48-90. Here, it does not appear that the evaluation by the professional specialist(s) or the trial have been completed. Moreover, even if the SVP proceedings have been completed, Plaintiff has not alleged that he appealed any commitment. If a civilly committed person does not prevail at the trial level, the State of South Carolina provides appellate judicial review of all findings made by the civil trial judge under the SVP A. The appellate review of a final civil commitment determination by the Court of Common Pleas is generally conducted by the South Carolina Court of Appeals, White v. State. 649 S.E.2d 172 (S.C.Ct.App. 2007); although this review may also be conducted by the Supreme Court of South Carolina upon certification from the South Carolina Court of Appeals. See Care & Treatment of Beaver v. State. 642 S.E.2d 578, 579, 580 n. 2 (S.C. 2007); Rule 204(b), SCACR. Plaintiff has not alleged that he received an adverse result at trial and has not alleged that he has unsuccessfully appealed any adverse result at trial to the South Carolina Court of Appeals. Because Plaintiff has not proceeded through the statutory mechanism of South Carolina's SVPA, he has not exhausted his state court remedies. See Michau v. Joan W. Warden, 9th Circuit Solicitor's Office. Civil Action No. 2:11-0286-RMG-BM, 2011 WL 4943631, *2 (D.S.C. Oct. 17, 2011) ["Plaintiffs avenue of appeal of this determination is in state court and not in this Court."]; see also Jordan v. McMaster, No. 8:09-0051-CMC-BHH, 2010 WL 419928, *3 (D.S.C. Jan.29, 2010)["Therefore, as Petitioner cannot establish cause and prejudice for his failure to exhaust his state court remedies, consideration of the merits of this petition is foreclosed."].
Additionally, to the extent Plaintiff is requesting release from custody, such relief may only be obtained in a habeas action, not in a § 1983 case. See Preiser v. Rodriguez. 411 U.S. 475, 500 (1973) [complaint or petition challenging the fact or duration of confinement should be construed and processed as a habeas corpus petition, while a complaint or petition challenging the conditions of confinement should be construed and processed as a complaint pursuant to 42 U.S.C. § 1983]. In Heck, the Fourth Court reiterated that release from prison is not a remedy available under 42 U.S.C. § 1983. Heck. 512 U.S. at 481 [stating that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983"]. Therefore, if Plaintiff wishes to challenge the duration of his confinement, he should obtain habeas forms from the Clerk of Court and file a separate action, after he has fully exhausted his state court remedies.
Even if Plaintiff is not challenging his detention, it appears that if he is awarded his requested relief it would result in his release from custody.
To the extent Plaintiff is attempting to assert a claim against the Director of the DCDC, claiming that the jail does not provide him with the ability to do legal research and will not supply "indigent ones an ink pen or pencil to do legal work," Plaintiff has not named the Director of DCDC as a Defendant to this action. Further, even if he were to amend his complaint to do so, such an attempt would be futile. See, e.g.. Goode v. Cent. Virginia Legal Aid Soc'y. Inc.. 807 F.3d 619, 623 (4th Cir. 2015). Although Plaintiff does not appear to be satisfied with his appointed attorney, he admits he is represented by legal counsel in his pending proceedings. An allegation that a law library is subpar may not be a constitutional violation if the prisoner is provided with an attorney. Lewis v. Casey. 518 U.S. 343, 351 (1996) (citing Bounds v. Smith. 430 U.S. 817 (1977)). Further, the Fourth Circuit Court of Appeals has held that local jails, designed for temporary detainment, are generally not required to have a law library. Magee v. Waters. 810 F.2d 451, 452 (4th Cir. 1987). Additionally, to state a claim for denial of access to the courts, a plaintiff must satisfy the constitutional standing requirement by alleging an actual injury, and Plaintiff has not alleged any actual injury. Lewis v. Casey. 518 U.S. 343, 349 (1996). To meet this requirement, a plaintiff must show that the actions of the prison officials hindered the prisoner's efforts to pursue a nonfrivolous claim. Lewis 518 U.S. at 354. Actual injury requires the inmate to "demonstrate that his nonfrivolous, post-conviction or civil rights legal claim has been frustrated or impeded." Jackson v. Wiley. 352 F.Supp.2d 666, 679-80 (E.D. Va. 2004). Here, it is clear that Plaintiff, who has filed more than twenty lawsuits in the last several years and who has submitted his handwritten Complaint with numerous pages of handwritten attachments, has access to legal supplies.
Additionally, the Defendant Bogle is protected from suit for Plaintiffs claims, as prosecutors have absolute immunity from damages for activities performed as "an officer of the court" where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein. 555 U.S. 335, 341-343 (2009). For example, when a prosecutor "prepares to initiate a judicial proceeding," "appears in court to present evidence in support of a search warrant application," or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial "motions" hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons. 509 U.S. 259 (1993); Dababnah v. Keller-Burnside. 208 F.3d 467 (4th Cir. 2000); Hendricks v. Bogle. 3:13-CV-2733-DCN, 2013 WL 6183982, at *2 (D.S.C. Nov. 25, 2013) ["In South Carolina, the Attorney General and his assistants function as prosecutors in criminal appeals, post-conviction relief actions, and in proceedings under the SVPA.... [The Attorney General has] absolute immunity for [his] prosecution-related activities in or connected with judicial proceedings."]; Garrett v. McMaster. 7:07-2952-HFF-WMC, 2008 WL 3411673 (D.S.C. Aug. 11, 2008)[finding that the Attorney General and a former Assistant Attorney General had prosecutorial immunity for conduct related to presenting the State's case]. Therefore, Plaintiff has failed to state a claim against Defendant Bogle based on his participation in Plaintiffs civil commitment proceedings. See Mitchell v. Forsyth. 472 U.S. 511, 526 (1985)[absolute immunity "is an immunity from suit rather than a mere defense to liability"].
Although Defendant Bogle is entitled to prosecutorial immunity from liability for damages for activities associated with the judicial phase of Plaintiffs SVP commitment proceedings, prosecutorial immunity does not protect prosecutors from suits seeking declaratory or injunctive relief. See Koon v. Toal. No. 15-3357, 2015 WL 6466441, at * 4 (D.S.C. Oct. 16, 2015). However, Plaintiff cannot seek such relief in this civil rights action. Id. Moreover, even if Plaintiff was seeking habeas relief in this case, an attempt to dismiss or otherwise prevent a "prosecution" (to include SVP commitment proceedings) is not attainable through federal habeas corpus except in the most narrow and extraordinary of circumstances, none of which are present here. See Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996) citing to Younger v. Harris. 401 U.S. 37. 43-44 (1971); see also Martin Marietta Corp. v. Md. Commission on Human Relations. 38 F.3d 1392, 1396 (4th Cir. 1994).
As for the Defendant Judge Burch, he is entitled to absolute judicial immunity from suit for all actions taken in his judicial capacity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman. 435 U.S. 349, 351-64 (1978); Pressly v. Gregory. 831 F.2d 514, 517 (4th Cir. 1987)[a suit by South Carolina inmate against two Virginia magistrates]; Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985)["It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions."]; see also Siegert v. Gilley. 500 U.S. 226 (1991) [immunity presents a threshold question which should be resolved before discovery is even allowed]; accord Bolin v. Story. 225 F.3d 1234 (11th Cir. 2000)[discussing judicial immunity of United States District Judges and United States Circuit Judges]. Therefore, Plaintiff has also failed to state a claim against Judge Burch.
Finally, it is unclear if Plaintiff is attempting to assert any state law claims. For the reasons discussed, since Plaintiff has asserted no valid federal claim, this Court should not exercise supplemental jurisdiction over any state law claims Plaintiff may be attempting to assert. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs. 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va.. 290 F.3d 620, 626 (4th Cir. 2002)[affirming district court's dismissal of state law claims when no federal claims remained in the case]. Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) ["[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants"]. Thus, any state law claims should be dismissed without prejudice.
While a civil action for a state law claim would be cognizable in this Court on its own under the federal diversity statute, that statute requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). See 28 U.S.C. § 1332(a). Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). Here, all parties to this action are residents of South Carolina, so diversity of citizenship does not exist. Accordingly, this Court has no diversity jurisdiction over any state law claims being asserted.
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Plaintiffs Complaint without prejudice and without issuance and service of process.
Plaintiffs attention is directed to the important notice on the nextpage.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Ace. Ins. Co.. 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn. 474 U.S. 140 (1985); Wright v. Collins. 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).