United States District Court, D. South Carolina, Orangeburg Division
Timothy M. Cain United States District Judge.
Curtis Jerome Lytle, proceeding pro se, filed this action
pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 1,
Compl.). In accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02, D.S.C., this matter was referred to a
magistrate judge for pretrial handling. Before the court is
the magistrate judge's Report and Recommendation
(“Report”), recommending that the complaint be
dismissed without prejudice. (ECF No. 21). Plaintiff was
advised of his right to file objections to the Report. (ECF
No. 21 at 9). Plaintiff timely filed objections. (ECF No.
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In that case, the court reviews the
Report only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
Complaint, Plaintiff is challenging a 2012 disciplinary
conviction from his incarceration in USP-Lee in Pennington
Gap, Virginia. As a result of this disciplinary conviction,
Plaintiff alleges he lost 82 days of good time credit and was
placed in a higher security custody level. (Compl. at 4). In
her Report, the Magistrate Judge finds that this complaint
should be summarily dismissed without prejudice because
Plaintiff has pursued the wrong remedy. (Report at 6). She
states that a Bivens action cannot provide Plaintiff
with the relief he seeks, restoration of good time credit,
but Plaintiff may seek relief pursuant to a habeas action
filed pursuant to 28 U.S.C. § 2241. (Report at 4-5). The
Magistrate Judge then continues that, even if the court were
to find that this action could continue as a Bivens
action, the court lacks personal jurisdiction over the
Defendants who reside outside of South Carolina. Id.
objections, Plaintiff states that he “feels this
[complaint] was the 2241 just expressed on the wrong
forms.” (Objections at 1). He further states it is his
understanding that he should be filing the Bivens,
or § 1983 action, in Virginia. Id.
court agrees that a Bivens action is not the proper
remedy for the reasons stated by the Magistrate Judge.
Additionally, the court notes that a 42 U.S.C. § 1983 or
Bivens action challenging disciplinary convictions
is barred by Heck v. Humphrey, 512 U.S. 477 (1994)
-whether it is filed here or in Virginia. See also Poston
v. Shappert, 222 F.App'x 301, 301 (4th Cir.2007)
(unpublished) (applying Heck rationale to bar claims
for damages under § 1983 and Bivens). In
Heck, the Court held that a § 1983 claim is not
cognizable if it implies the invalidity of a conviction.
Heck, 512 U.S. 487. See also Edwards v.
Balisok, 520 U.S. 641, 648 (1997) (extending
Heck to disciplinary convictions). Heck
bars a prisoner's claim for damages under § 1983 or
Bivens where success of the action would implicitly
question the validity of the conviction or duration of the
sentence, unless the prisoner can demonstrate that the
conviction or sentence has been successfully challenged. In
this case, a favorable determination on the merits of the
Plaintiffs claims would imply the invalidity of Plaintiff s
Magistrate Judge recommends that this action be dismissed.
(Report at 6). However, after reviewing the record in this
action and Plaintiff's objections, the court finds that
the complaint should not be dismissed. Rather, the court
finds it should construe the action as a habeas action filed
pursuant to § 2241. As to Plaintiffs request for a
refund of his $400 filing fee, the court grants
Plaintiff's request due to the unusual circumstances in
after a thorough review of the record in this action, the
court declines to adopt the Magistrate Judge's Report
(ECF No. 21) and incorporates it herein. This matter is
recommitted to the Magistrate Judge for further handling.
Further, the Clerk of Court is ORDERED to change the nature
of this suit from a prisoner civil rights action to a habeas
action. As Plaintiff paid a filing fee of $400 (See ECF No.
17 - Receipt SCX400011815), he is entitled to a refund of
$395 (the $400 filing fee he paid minus the $5.00 filing fee
required in a habeas action). Accordingly, the Clerk of Court
is to ORDERED to issue Plaintiff a refund in the amount of
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...