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 is detained at the Glen Campbell Detention
Center in Darlington, South Carolina. He appears to be
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, 4; 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,
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. Baskeryille,
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
(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). Such is the
alleges that Defendants violated his Fifth and Fourteenth
Amendment rights. ECF No. 1 at 4. He asserts that on
September 24, 2011, he was arrested on a warrant charging him
with showing nude photos of Plaintiff (the photos were on a
cell phone) and an indecent message from Plaintiff (that was
also on the cell phone) to minors. Plaintiff claims that the
police refused his request to see the nude photos (he
contends that he was not nude in the photos). He claims that
arresting officer Defendant Eric Hodges told him that the
minors had the phone in June and July, but also said that the
date the indecent message was written was in August.
Plaintiff allegedly had an incident report that contained the
above dates, but gave it to his attorney's assistant and
appears to no longer have that report. He claims that a few
days later the Sheriffs Department issued another incident
report that had different dates, including a statement that
the minors had the phone between June and August. Defendant
Hodges allegedly recited the incorrect dates of June to
August during Plaintiff s probable cause hearing. Plaintiff
asserts that the statements allegedly made by the minors to
police officers and the alleged photos of him (in which he
claims he was not nude) differ from the information contained
in the warrant and indictment. Plaintiff contends that
Defendant Hodges' testimony before the grand jury was
false because the victims allegedly never told police
officers that Plaintiff was nude in the photos or that they
read any indecent message written by Plaintiff. Additionally,
Plaintiff claims that Defendant Wayne Byrd gave Defendant
Hodges permission to obtain the allegedly illegal arrest
warrants. Plaintiff asserts that the statements made by the
police were fabricated such that his due process rights were
violated, his prosecution was procedurally improper, and his
arrest was illegal. ECF No. 1 at 7-8; see also ECF No. 1-1
(Plaintiff s" Statement of Un-Disputed Facts" and
alleges injuries of loss of liberty, personal humiliation,
mental anguish, loss of family relationships, and loss of
wages. ECF No. 1 at 9. He appears to request declaratory and
injunctive relief as well as monetary damages. ECF No. 1 at
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 the sentence, unless the prisoner can demonstrate
that the conviction or sentence has been previously
invalidated. Heck, 512 U.S. at 486-487.
from Darlington County indicate that Plaintiff was convicted on
February 27, 2013 (jury trial) on the charges of criminal
solicitation of a minor, sexual exploitation of a minor
(second degree), and disseminating harmful material or
exhibiting harmful performance to minors, and was sentenced
to eight years imprisonment as to each conviction (concurrent
sentences). See Darlington County Fourth Judicial
Circuit Public Index,
6&CourtAgency= 16001 &Casenum=201
3GS1600606&CaseType=C (last visited Dec. 11, 2017).
Plaintiff was also sentenced to three years concurrent as to
his conviction of contributing to the delinquency of a minor.
&Casenum=2013GS1600605&CaseType=C (last visited Dec.
11, 2017). As Plaintiff has not shown a favorable termination
as to his state court convictions, his claims are barred by
Heck, and should be dismissed. See Lambert v.
Williams, 223 F.3d 257, 260-261 (4th Cir. 2000)[claim
for malicious prosecution requires a showing that the
initiation or maintenance of a proceeding against the
plaintiff was without probable cause to support it and a
termination thereof occurred in favor of the plaintiff!,
cert, denied. 531 U.S. 1130 (2001); Brooks v.
City of Winston-Salem, 85 F.3d 178, 183 (4th Cir.
1996)[Claim for malicious prosecution does "not accrue
until a favorable termination is obtained."]; Roesch
v. Otarola, 980 F.2d 850, 853-854 (2d Cir. 1992)[holding
that requirement that a plaintiff receive favorable
termination applies to claims of false arrest, false
imprisonment, and malicious prosecution]; Ballenger v.
Owens, 352 F.3d 842 (4th Cir. 2003)[Heck generally
applies where search and seizure issues are raised].
also acts to bar Plaintiffs claims for injunctive and
declaratory relief. See Wilkinson v. Dotson, 544
U.S. 74, 81-82 ["[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)).
unclear whether Plaintiff is still incarcerated as to his
2013 convictions discussed above. The Fourth Circuit, in
Wilson v. Johnson, 535 F.3d 262 (4th Cir. 2008),
indicated that Heck does not bar a § 1983
action where "a prisoner could not, as a practical
matter, seek habeas relief." Wilson. 535 F.3d
at 268. However, even if Plaintiff is currently no longer
"in custody" as to the challenged convictions, he
had ample time to bring his habeas claims while in custody
and has not alleged that circumstances beyond his control
existed to prevent him from pursuing habeas relief. See
Bishop v. County of Macon, 484 Fed.Appx. 753, 754
(4th Cir. 2012)[Finding that the Wilson exception
only applies where the plaintiff can show that circumstances
beyond his control left him unable to pursue habeas remedies
and warning that "Wilson does not permit a
plaintiff to end-run Heck by simply sitting on his
rights until all avenues for challenging a conviction have
closed."]; see also Covey v. Assessor of Ohio
County, 777 F.3d 186.197 (4th Cir. 2015) [In order for
the Heck bar not to apply, the claimant must not
only no longer be in custody because the sentence has been
served, but also could not have practicably sought habeas
relief while in custody]; cf Ballenger v. Owens, 515
Fed.Appx. 192, 195 n.5 (4th Cir. 2013)[Noting that where a
claimant had sufficient time to pursue post conviction
relief, and indeed had actually done so and was unsuccessful,
the Heck bar remains even after termination of the
underlying conviction or sentence].
Plaintiff currently has an application for post-conviction
relief pending in the South Carolina Courts. See
County=l 6&Court Agency=l
6002&Casenum=2015CP1600016&CaseType=V (last visited
Dec. 11, 2017). To the extent that Plaintiff is requesting
that this Court interfere with his pending state court action
(his PCR), 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). Even though Plaintiff was
convicted of the charges against him in a jury trial, any
pending proceedings in the state court (e.g.,
pending applications for post-conviction relief) are still
part of his "pending criminal case" as that
terminology is understood under Younger and its
progeny. See, e.g., Howell v. Wilson, No.
4:13-2812-JFA-TER, 2014 WL 1233703 (Mar. 25, 2014) [applying
Younger as to the plaintiffs request that the
district court provide direction to state court judges as to
the plaintiffs PCR, criminal, and/or DNA testing cases];
Smith v. Bravo, No. 99 C 5077, 2000 WL 1051855, *5
(N.D.Ill.2000)[presuming that Younger abstention
would apply to civil case that could interfere with
post-conviction proceedings]; Lockheart v. Chicago Police
Dep't, No. 95 C 343, 1999 WL 639179, *2 (N.D.Ill.
Aug. 17, 1999)[applying Younger because
post-conviction proceedings were pending].
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].
may be requesting release from custody. However, such relief
may only be obtained in a habeas action. 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 § ...