United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge.
Jerome Eugene Todd is a prisoner in custody of the Bureau of
Prisons who currently is housed at the Federal Correctional
Institution in Estill, South Carolina. Plaintiff brings this
action pro se pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397
(1971), for the alleged violation of his civil rights. ECF
No. 1. In accordance with 28 U.S.C. § 636(b) and Local
Rule 73.02, D.S.C., this matter was referred to United States
Magistrate Judge Kevin F. McDonald for pretrial handling.
This matter is now before the court for review of the
Magistrate Judge's Report and Recommendation.
7, 2018, Plaintiff filed a complaint alleging that Defendants
had violated his constitutional rights by investigating,
arresting, and convicting him for violations of the
Trafficking Victim's Protection Act (“TVPA”),
18 U.S.C. § 1591(a)(1), and for conspiracy to engage in
sex trafficking in violation of 18 U.S.C. § 371. In an
order dated May 14, 2018, the Magistrate Judge ordered
Plaintiff to refile his complaint using the proper form. ECF
No. 5. The Magistrate Judge advised Plaintiff that failure to
bring the case into proper form within the time permitted by
the order may result in the court dismissing the case for
failure to prosecute and failure to comply with a court
order. Id. at 1. The Magistrate Judge further
ordered Plaintiff to either pay the $400 filing fee or submit
an application to proceed without prepayment of fees (form AO
240) and a financial certificate. Id.
subsequently filed a motion to amend his complaint and a
motion for extension of time to bring his case into proper
form. ECF Nos. 11, 12. The Magistrate Judge granted the
motions and ordered Plaintiff to file an amended complaint in
proper form on or before July 2, 2018. ECF No. 16. The
Magistrate Judge also advised Plaintiff, again, to either pay
the filing fee or submit the appropriate form to proceed
without prepayment of fees. Id. Plaintiff failed to
file an amended complaint as ordered, and, instead, on July
6, 2018, filed a motion to stay the case. ECF No. 19. The
motion to stay asked the court to stay the matter for an
unspecified period of time to permit then-Attorney General
Jeff Sessions to intervene. Id. at 4. The Magistrate
Judge denied the motion to stay as meritless. ECF No. 24. The
docket reflects that Plaintiff neither paid his filing fees
nor filed the appropriate form to proceed without prepayment.
10, 2018, the Magistrate Judge issued a Report and
Recommendation recommending summary dismissal of the
complaint without prejudice. ECF No. 26. Pursuant to
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310 (4th Cir. 2005), the Magistrate Judge advised
Petitioner of his right to file an objection to the Report
and Recommendation. ECF No. 30-1 at 1.
23, 2018, Plaintiff filed an objection to the Report and
Recommendation, ECF No. 29, and a motion to amend his
complaint, ECF No. 30. On July 27, 2018, Plaintiff filed a
motion for leave to file a second amended complaint pursuant
to Federal Rule of Civil Procedure 15(c), ECF No. 34, and an
“Emergency Motion for Joinder of Additional Parties
Rule 19/20, ” ECF No. 35. With the motions to amend,
Plaintiff seeks to assert claims under the Federal Tort
Claims Act (“FTCA”) and asks that the court toll,
pursuant to equitable estoppel principles, claims he might
seek to raise under the TVPA. Plaintiff asks to join the
following: the “Clerk of the U.S. District
Court”; the “United States Marshal
officer”; and former Attorney General Jeff Sessions.
ECF No. 35.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight and the
responsibility for making a final determination remains with
the court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The court reviews de novo only those portions of a
magistrate judge's report and recommendation to which
specific objections are filed and reviews those portions
which are not objected to-including those portions to which
only “general and conclusory” objections have
been made-for clear error. Diamond, 416 F.3d at 315;
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983);
Opriano v. Johnson, 687 F.2d 44, 77 (4th Cir. 1982).
The court may accept, reject, or modify, in whole or in part,
the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
Plaintiff does not indicate in his objection or in the
motions pending before the court that the Magistrate Judge
erred in any way with the Report and Recommendation.
Accordingly, the court reviews the Report and Recommendation
for clear error. Diamond, 416 F.3d at 315;
Fed.R.Civ.P. 72(b). The court has thoroughly reviewed the
record and, for the reasons discussed below, concurs in the
recommendation of the Magistrate Judge.
Magistrate Judge recommends summary dismissal of the
complaint on the basis that the relief Plaintiff seeks
implies the unlawfulness of the sentence Plaintiff is
currently serving.On September 29, 2008, the District Court
for the Western District of Washington sentenced Plaintiff to
five years' imprisonment for conspiracy to violate the
TVPA; to twenty-six years to run concurrently on three TVPA
counts; and to ten years on a count of transporting a
prostitute in interstate commerce. See U.S. v. Todd,
627 F.3d 329 (9th Cir. 2010). The Ninth Circuit Court of
Appeals affirmed the judgment of conviction and sentence.
Id. Plaintiff subsequently sought and was denied
post-conviction relief and relief under the habeas corpus
statute 28 U.S.C. § 2241. Todd v. U.S., Nos.
C11-0470-JLR-MAT, CR-07-395-JLR, 2012 WL 2952067 (W.D. Wash.
Jul 19, 2012); Todd v. English,
5:16-cv-00151-MP-CAS, 2016 WL 6090944 (N.D. Fla. Oct. 18,
appears to claim that his incarceration amounts to a
conspiratorial kidnapping, false imprisonment, and malicious
prosecution. He seeks monetary damages and immediate release
from custody. ECF No. 1 at 18. As the Magistrate Judge
discussed, in Heck v. Humphry, the Supreme Court
held that “when a state prisoner seeks damages in a
§ 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.” Heck v. Humphrey, 512 U.S. 477,
487 (1994). The Court explained:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.
Id. See Wilkinson v. Dotson, 544 U.S. 74, 81-82
(2005) (holding that Heck and related cases preclude
a state prisoner's action, absent prior invalidation, no
matter the type of relief sought); Harlow v.
Fitzgerald, 457 U.S. 800, 814-20 n.30 (1982)
(analogizing a Bivens claim to a claim brought
against state officials under 42 U.S.C. § 1983). In
reviewing the applicable case law along with the standard
applicable to litigants who proceed pro se, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), the Magistrate Judge
determined that the court should dismiss Plaintiff's
claims because he has not asserted that his criminal
conviction has been invalidated. ECF No. 26 at 3. The court
agrees with this finding. Additionally, the court notes that the
pending motions to amend and for joinder do not assert that