United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge
a civil action filed by the Plaintiff, Larry James Tyler,
pro se. Plaintiff, a frequent filer of litigation in
this Court,  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 5, 17; 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).
established local procedure in this judicial district, a
careful review was 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). 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]. 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.
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 (2007)(quoting 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). Here, after review of Plaintiff's
Complaint pursuant to this standard, the undersigned issued a
Report and Recommendation on July 25, 2017 recommending
summary dismissal of the Complaint without prejudice.
However, after Plaintiff filed objections, the Court ruled,
out of an abundance of caution, that Plaintiff's
statement in his objections that “the Attorney General
is the proper name to use to represent the State of South
Carolina” would be construed as a motion by Plaintiff
to amend his Complaint. The Court therefore ordered Plaintiff
to file an Amended Complaint with the Clerk by no later than
Friday, September 8, 2017, and recommitted the matter to the
undersigned for further consideration. See Court
Docket No. 12. See, e.g., Brockington
v. South Carolina Dep't of Soc. Servs., No. 17-1028,
2017 WL 1531633 (4th Cir. 2017)[Noting that pro se
Plaintiff should be provided an opportunity to amend his
complaint to cure defects prior to a dismissal]; Evans v.
Richardson, No. 17-1144, 2017 WL 2294447 (4th Cir. May
25, 2017)[same]; Breyan v. All Medical Staff, No.
17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017)[same].
time for Plaintiff to have filed his Amended Complaint has
now expired, with no Amended Complaint having been filed.
Therefore, for the reasons previously set forth in the Report
and Recommendation issued July 25, 2017, it remains the
recommendation of the undersigned that this case be
dismissed. Further, as is more fully discussed hereinbelow,
even if Plaintiff had amended his Complaint to substitute the
Attorney General of South Carolina as the party Defendant in
this case, replacing the Defendant James Bogle, and after
consideration of the arguments Plaintiff makes in his
objections filed to the original Report and Recommendation,
summary dismissal is still the appropriate ruling by the
alleges that his substantive and procedural due process
rights have been violated. Complaint, ECF No. 1 at 4. His
allegations arise out of a probable cause hearing, as to his
SVP proceedings, that was held on October 26, 2015. Plaintiff
claims that the probable cause hearing was illegal because he
did not receive advance notice of the hearing, the prosecutor
impermissibly brought up a prior conviction from another
state that was eighteen years old and was an unrelated
non-violent crime (the prosecutor allegedly said that the
crime was one that is classified as violent in South
Carolina), and that he does not have enough convictions to be
eligible for SVP evaluation. Plaintiff also asserts that his
attorney, Defendant James K. Falk, was ineffective because
Falk failed to make any comments or defend the Plaintiff. ECF
No. 1 at 5-7. Plaintiff seeks declaratory and injunctive
relief (including release from detention) as well as monetary
damages. Id. at 8.
as was noted in the original Report and Recommendation,
Plaintiff's 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 was being
held past his mandatory parole release date as to his state
convictions as well as his civil confinement pending
assessment as a SVP.Cf. Huff v. Attorney General
of Va., No. 3:07cv744, 2008 WL 4065544 (E.D.Va. Aug. 26,
2008), aff'd, 323 F. App'x 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
also acts to bar Plaintiff's 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 F. App'x 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)).
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:
Luckabaugh, 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 F.
App'x 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,
i.e., would interfere in a way that Younger
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
to the extent Plaintiff is requesting release from custody,
such relief may only be obtained in a habeas action, not in a
§ 1983 case. 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
Plaintiff has also improperly named the two Defendants in
this case. Plaintiff's claims against Defendant Bogle
(the prosecutor in his State proceeding) involve the
prosecution of his criminal cases. As such, Defendant Bogle
is protected from Plaintiff's claims for damages by
prosecutorial immunity. See Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)[absolute immunity “is an immunity
from suit rather than a mere defense to liability”];
see also Bernard v. County of Suffolk, 356 F.3d 495,
502 (2d Cir. 2004)[immunity extends to “persons working
under [a prosecutor's] direction, when they function as
advocates for the state” and are clearly associated
with the judicial process]. Prosecutors have absolute
immunity 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 ...