Christopher Livingston v. The North Carolina State Bar

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 27, 2023
• Docket: 23-1413
• Status: Unpublished

Opinion

USCA4 Appeal: 23-1413 Doc: 13 Filed: 06/27/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1413

CHRISTOPHER W. LIVINGSTON,

Plaintiff - Appellant,

v.

THE NORTH CAROLINA STATE BAR; SUSANNAH B. COX; KATHERINE E. JEAN,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Richard E. Myers II, Chief District Judge. (7:21-cv-00115-M)

Submitted: June 22, 2023 Decided: June 27, 2023

Before HARRIS and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part and affirmed as modified in part by unpublished per curiam opinion.

Christopher Wyatt Livingston, Appellant Pro Se. David Richard Johnson, NORTH CAROLINA STATE BAR, Raleigh, North Carolina, for Appellees.

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PER CURIAM:

Christopher Wyatt Livingston appeals the district court’s order adopting the

magistrate judge’s recommendation and dismissing Livingston’s amended complaint

against the North Carolina State Bar (“NCSB”) and two of its attorneys. The magistrate

judge recommended that the court dismiss Livingston’s federal claims against the NCSB

and the attorneys in their official capacities because those claims are barred by Eleventh

Amendment immunity. The magistrate judge further recommended that the court dismiss

Livingston’s federal claims against the attorneys in their individual capacities because the

attorneys are entitled to prosecutorial immunity. Finally, the magistrate judge

recommended that the court decline to exercise supplemental jurisdiction over Livingston’s

state-law claims. Livingston objected, arguing that the attorneys were not functioning in a

prosecutorial capacity. The district court overruled this objection and another objection

that had no bearing on the magistrate judge’s recommendation, adopted the magistrate

judge’s recommendation in full, granted Defendants’ motion to dismiss, and declined to

exercise supplemental jurisdiction over the state-law claims. We affirm in part and affirm

as modified in part.

The timely filing of specific objections to a magistrate judge’s recommendation is

necessary to preserve appellate review of the substance of that recommendation when the

parties have been warned of the consequences of noncompliance. Martin v. Duffy,

858 F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985);

see also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). Here, after being advised of the

consequences of noncompliance, Livingston failed to object to the magistrate judge’s

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recommendation that the court dismiss Livingston’s federal claims against the NCSB and

the attorneys in their official capacities as barred by Eleventh Amendment immunity. See

Martin, 858 F.3d at 245 (“[T]o preserve for appeal an issue in a magistrate judge’s report,

a party must object to the finding or recommendation on that issue with sufficient

specificity so as reasonably to alert the district court of the true ground for the objection.”

(internal quotation marks omitted)). Livingston has therefore forfeited appellate review of

the dismissal of those claims. However, because a dismissal based on Eleventh

Amendment immunity should be without prejudice, see Pense v. Md. Dep’t of Pub. Safety

& Corr. Servs., 926 F.3d 97, 99, 103 (4th Cir. 2019), we affirm as modified to reflect that

the dismissal of Livingston’s federal claims against the NCSB and the attorneys in their

official capacities is without prejudice.

As for the remainder of the district court’s order, we find no reversible error and

affirm. Livingston v. N.C. State Bar, No. 7:21-cv-00115-M (E.D.N.C. Mar. 13, 2023). 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 IN PART, AFFIRMED AS MODIFIED IN PART