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C/A No.: 9:18-1513-MGL-BM (D.S.C. Aug. 6, 2018)

C/A No.: 9:18-1513-MGL-BM


Larry James Tyler, Plaintiff, v. James Bogle, Jr., Defendant.


This is 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, where he is awaiting civil commitment proceedings pursuant to the South Carolina Sexually Violent Predator Act (SVPA), S.C. 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).

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).

Plaintiff's 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 (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 case here.

Plaintiff's Allegations

Plaintiff alleges that his Fourteenth Amendment rights have been violated. Complaint, ECF No. 1 at 4. Plaintiff is once again challenging his pending sexually violent predator (SVP) proceedings, this time arguing that his Fourteenth Amendment rights were violated based on procedures taken by Defendant Assistant Attorney General James Bogle, Jr. prior to Plaintiff's SVP probable cause hearing that found him "eligible" to go on to a SVP probable cause hearing. He claims that Bogle impermissibly deemed some of his convictions as "violent" under the SVPA (Plaintiff claims they are not violent crimes pursuant to unspecified "federal guidelines"). Plaintiff asserts that he is challenging the legality of South Carolina's procedures used to classify him as a sexually violent predator and the procedure the State used in forcing him to submit to SVP evaluations. Id. at 6-8. Plaintiff requests declaratory, injunctive, and monetary relief. Id. at 10-11.

The SVPA requires review of the records of any person convicted of a sexually violent offense by a multi-disciplinary team, generally prior to their release from confinement. See S.C.Code Ann. §§ 44-48-40, 44-48-50. If the multi-disciplinary team determines the person satisfies the definition of a sexually violent predator, the "team must forward a report of the assessment to the prosecutor's review committee and notify the victim." S.C.Code Ann. § 44-48-50. If the prosecutor's review committee believes probable cause exists that the individual is a sexually violent predator, a petition is filed for a judicial determination of probable cause. See S.C.Code Ann. §§ 44-48-60, 44-48-70.

Plaintiff has admitted in previous lawsuits that he was represented by counsel at a probable cause hearing on October 26, 2015 (he has claimed that the hearing violated his due process rights and that his hearing counsel was ineffective). See, e.g., Tyler v. Bogle, No. 4:17-1251-MGL-BM (D.S.C. 2017); Tyler v. Byrd, No. 4:16-400-MGL-BM (D.S.C. 2016).

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).


Initially, the undersigned is constrained to note that 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 by Heck].

Heck 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)).

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: 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 disapproves].

Plaintiff appears to assert that he has already been classified as an SVP. 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, 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, 345 S.C. 638, 648-51, 550 S.E.2d 311, 315-17 (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].

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.

Although Plaintiff states that he is "not challenging the incarceration itself," it appears that if he is awarded his requested relief it would result in his release from custody.

Additionally, Defendant is protected from suit for any such 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 based on his participation in Plaintiff's 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 is entitled to prosecutorial immunity from liability for damages for activities associated with the judicial phase of Plaintiff's 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 a civil rights action. Id. Moreover, even if Plaintiff was seeking habeas relief in this case, which he is not, 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). --------


Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without prejudice and without issuance and service of process.

Plaintiff's attention is directed to the important notice on the next page.


Bristow Marchant

United States Magistrate Judge August 6, 2018
Charleston, South Carolina

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 & Acc. 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).

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