Petition for Writ of Certiorari — Charles Jordan, Petitioner v. John H. Magill, et al.

USCA4 Appeal: 18-7438

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7438

CHARLES JORDAN,

Plaintiff - Appellant,

v.

JOHN H. MAGILL; JAMES G. BOGLE; JUDGE PAUL M. BURCH,

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at

Orangeburg. David C. Norton, District Judge. (5:18-cv-02852-DCN)

Submitted: April 18,2019

Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles Jordan, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Decided: April 22, 2019

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PER CURIAM:

Charles Jordan appeals the district court’s order adopting the magistrate judge’s

recommendation to dismiss, after a 28 U.S.C. § 1915(e) (2012) review, Jordan’s 42

U.S.C. § 1983 (2012) complaint. On appeal, we confine our review to the issues raised in

the Appellant’s brief.

See 4th Cir. R. 34(b).

Because Jordan’s informal brief and

supplement thereto do not dispute the bases for the district court’s dismissal, Jordan has

forfeited appellate review of the district court’s order. See Williams v. Giant Food Inc.

370 F.3d 423, 430 n.4 (4th Cir. 2004). Accordingly, we deny Jordan’s motion for

appointment of counsel and affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

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FILED: April 22, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7438

(5:18-cv-02852-DCN)

CHARLES JORDAN

Plaintiff - Appellant

v.

JOHN H. MAGILL; JAMES G. BOGLE; JUDGE PAUL M. BURCH

Defendants - Appellees

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

5:18-cv-02852-DCN

Date Filed 11/15/18

Entry Number 15

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Charles Jordan,

Plaintiff,

vs.

John H. Magill; James G. Bogle; and

Judge Paul M. Barch,

Defendants.

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C/A No.: 5:18-cv-2852 DCN

ORDER

The above referenced case is before this court upon the magistrate judge's recommenda­

tion that this complaint be dismissed without prejudice and without issuance and service of

process.

This court is charged with conducting a de novo review of any portion of the magistrate

judge's report to which a specific objection is registered, and may accept, reject, or modify, in

whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1).

However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend

for the district court to review the factual and legal conclusions of the magistrate judge. Thomas

v Am, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections

to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those

objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984),

cert, denied, 467 U.S. 1208 (1984 ).'

Objections to the Magistrate Judge’s Report and

’In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant

must receive fair notification of the consequences of failure to object to a magistrate judge's

report before such a procedural default will result in waiver of the right to appeal. The notice

must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him

of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections

had to be filed within ten (10) days, and he received notice of the consequences at the

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Entry Number 15

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Recommendation were timely filed on November 13, 2018 by plaintiff.

A de novo review of the record indicates that the magistrate judge's report accurately

summarizes this case and the applicable law. Accordingly, the magistrate judge’s Report and

Recommendation is AFFIRMED, and the complaint is DISMISSED without prejudice and

without issuance and service of process.

AND IT IS SO ORDERED.

David C. Norton

United States District Judge

November 15, 2018

Charleston, South Carolina

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified that any right to appeal this Order is governed by Rules

3 and 4 of the Federal Rules of Appellate Procedure

appellate level of his failure to object to the magistrate judge's report.

5:18-cv-02852-DCN

Date Filed 11/01/18

Entry Number 11

Page 1 of 7

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Charles Jordan,

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Plaintiff,

vs.

John H. Magill, James G. Bogle, and Judge

Paul M. Burch,

Defendants.

C/A No. 5:18-cv-02852-DCN-KDW

Report and Recommendation

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Charles Jordan (“Plaintiff’) is a civil detainee in the South Carolina Sexually Violent

Predator Treatment Program (“SVPTP”). Proceeding pro se, Plaintiff filed a Complaint pursuant

to 42 U.S.C. § 1983, seeking injunctive relief. (ECF No. 1 at 4, 6). Pursuant to the provisions of

28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e)(D.S.C.), this magistrate judge is

authorized to review all pretrial matters in cases filed by pro se litigants and submit findings and

recommendations to the district court.

STANDARD OF REVIEW

Under established local procedure in this judicial district, a careful review has been made

of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915. The review

has been conducted in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 32425 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972);

Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).

The Complaint in this case was filed under 28 U.S.C. § 1915, which permits an indigent

litigant to commence an action in federal court without prepaying the administrative costs of

proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute

allows a district court to dismiss the case upon a finding that the action “fails to state a claim on

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which relief may be granted” or is “frivolous or malicious.” 28 U.S.C. §1915(e)(2)(B)(I), (ii).

Hence, under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be

dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).

This court is required to liberally construe pro se pleadings, Estelle v. Gamble, 429 U.S.

at 97, holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe,

449 U.S. 5 (1980). The mandated liberal construction afforded pro se pleadings means that if the

court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,

it should do so, but a district court may not rewrite a pleading to “conjure up questions never

squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.

1985). 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

district court. Weller v. Dep’tofSoc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

DISCUSSION

Plaintiff alleges under 42 U.S.C. § 1983 that Defendants violated his Fourteenth

Amendment due process rights because he is civilly detained based on an allegedly non-existent

and false charge. The Defendants named are the Director of the South Carolina Department of

Mental Health, the Assistant Attorney General who prosecuted the civil detention case against

Plaintiff, and the judge who entered the detention judgment. Plaintiff asks the court to order the

charge expunged.

Public records1 show Plaintiff was civilly committed to the Sexually Violent Predator

Treatment Program as a result of a jury trial on or about August 26, 2008 in Darlington County

1 See generally, https://publicindex.sccourts.org/Darlington/Publidndex/PISearch.aspx (with search

parameters limited by Plaintiffs name). The court may take judicial notice of factual information located

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(No. 2006-CP-16-00519). Plaintiff has filed multiple PCRs and habeas actions and appeals in

state court without success regarding the same argument here. Plaintiff has previously argued

and argues here that his prior indictment for Lewd Act on a Child in 2003(the qualifying

conviction for his 2008 commitment) is a charge that does not exist. Accordingly, Plaintiff

argues, his Fourteenth Amendment rights have been violated.

To the extent Plaintiff is seeking review of state court decisions in this federal district

court, the United States Supreme Court is the only federal court with general statutory

jurisdiction to review state court judgments. See 28 U.S.C. § 1257 (U.S. Supreme Court review

is discretionary by way of a writ of certiorari and is not an appeal of right); District of Columbia

Ct. of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983). In civil, criminal, and other cases

heard in the courts of the State of South Carolina, appeals of state court decisions are within the

jurisdiction of the South Carolina Court of Appeals and/or the South Carolina Supreme Court.

See Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997). As to any challenges Plaintiff may be

making to final judgments in prior state court proceedings, the Rooker-Feldman Doctrine bars

them. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Feldman, 460 U.S. 462. To the

extent Plaintiff claims any injury caused by errors in state court proceedings, any such state court

ruling cannot be reviewed or set aside and such relief cannot be granted by the United States

District Court for the District of South Carolina. See Rooker, 263 U.S. 413; Feldman, 460 U.S.

462. This prohibition on review of state court proceedings by federal district courts is implicated

when a ruling in the plaintiffs favor on his claims in connection with state court proceedings

in postings on government websites. See In re Katrina Canal Breaches Consolidated Litig., No. 05-4182,

2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of

governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL

4848362 at *1 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government

websites as inherently authentic or self-authenticating).

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would, necessarily, require the federal court to overrule (or otherwise find invalid) various orders

and rulings made in the state court.

Such a result is prohibited under the Rooker-Feldman

Doctrine. See Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293-94 (2005);

Davani v. Va. Dep’t of Transport., 434 F.3d 712, 719-20 (4th Cir.2006). Because the RookerFeldman Doctrine is jurisdictional, it may be raised by the court sua sponte. American Reliable

Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003). According to the Fourth Circuit, “the

Rooker-Feldman doctrine applies . . . when the loser in state court files suit in federal district

court seeking redress for an injury allegedly caused by the state court’s decision itself.” Davani,

434 F.3d at 713. Plaintiffs Complaint is subject to summary dismissal based on this doctrine.

To the extent that, by seeking to have his record expunged, Plaintiff seeks release, such

relief is not cognizable in a § 1983 action. Plaintiff cannot obtain his “freedom” or release from

prison in this civil rights action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (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”); and Johnson v. Ozmint, 567 F. Supp. 2d 806, 823 (D.S.C.

2008) (release from prison is not a remedy available under 42 U.S.C. § 1983). Since Plaintiff has

had a Section 2254 action adjudicated on the merits with respect to his SVPTP committment, see

Jordan v. McMaster, No. 8:09-cv-00051-CMC (D.S.C. Jan. 29, 2010, summary judgment

granted for respondents), he must seek leave to file a successive habeas corpus petition. Leave

from the United States Court of Appeals for the Fourth Circuit is required under the AntiTerrorism and Effective Death Penalty Act of 1996 for filers of successive § 2254 petitions. See

In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1996) (“Under the AEDPA, an individual may not file a

second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate

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sentence without first receiving permission to do so from the appropriate circuit court of

appeals.”); and In re Fowlkes, 326 F.3d 542, 544 (4th Cir. 2003). Before Plaintiff attempts to

file another petition in the United States District Court for the District of South Carolina, he must

seek and obtain leave {i.e., written permission) from the United States Court of Appeals for the

Fourth Circuit pursuant to 28 U.S.C. § 2244(b)(3).

Further, an additional basis for summary dismissal is that Plaintiff s claims are barred by

Heck. In a § 1983 action, a district court is required to consider whether a judgment in favor of a

plaintiff would necessarily imply the invalidity of the conviction; if so, the complaint must be

dismissed, unless the plaintiff can demonstrate that the conviction or sentence has been

invalidated. Heck v. Humphrey, 512 U.S. at 486-87. It follows where Plaintiff here is asking

this federal court to expunge the record of his conviction based on alleged due process violations,

a judgment in his favor would imply the invalidity of his conviction. As such, this Complaint

must be dismissed unless Plaintiff can show his conviction has been overturned. Plaintiff here

cannot show that his conviction has been overturned or favorably terminated. Plaintiff has been

unsuccessful in repeated post-conviction collateral relief proceedings both in state court and this

court.2 Plaintiffs action is subject to summary dismissal on these grounds.

2 Cognizant of Goode v. Central Virginia Legal Aid Society, Inc., 807 F.3d 619, 623 (4th Cir.

2015), and its progeny, the undersigned notes amendment of the complaint here would be futile

and the basis of this summary dismissal makes clear Plaintiff could not “save his action by

merely amending his complaint” as his convictions and commitment have not been overturned.

Id. Moreover, the dismissal here is without prejudice because in the event Plaintiff s conviction

and/or commitment is overturned, in the future, he may again attempt to pursue a § 1983 action.

The limitations period for a post-trial civil rights action will not begin to run until the cause of

action accrues, i.e., until the conviction is set aside; therefore, a potential § 1983 plaintiff does

not have to worry about the running of the statute of limitations while he is taking the

appropriate steps to have a conviction overturned. See Wallace v. Kato, 549 U.S. 384, 391-92

(2007).

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Moreover, Defendant Judge Burch is subject to dismissal based on judicial immunity.

The doctrine of absolute immunity for acts taken by a judge in connection with his or her judicial

authority and responsibility is well established and widely recognized. See Mireles v. Waco, 502

U.S. 9, 11-12 (1991). Additionally, Defendant Bogle as an assistant attorney general is subject

to summary dismissal based on prosecutorial immunity. Prosecutors are protected by immunity

for activities in or connected with judicial proceedings. Van de Kamp v. Goldstein, 555 U.S.

335, 338-44 (2009); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir. 2000).

RECOMMENDATION

Accordingly, for all the reasons above, it is recommended that the district court dismiss

the Complaint in this case without prejudice and without issuance and service ofprocess. See

Brown v. Briscoe, 998 F.2d 201, 202-04 (4th Cir. 1993); see also 28 U.S.C. § 1915(e)(2)(B).

IT IS SO RECOMMENDED.

Kay man i D. West

United States Magistrate Judge

November 1, 2018

Florence, South Carolina

PlaintifFs attention is directed to the important notice on the next page.

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Additional material

from this filing is

available in the

Clerk's Office.