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UNPUBLISHED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Affirmed in part and affirmed as modified in part by unpublished per curiam opinion.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.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 23-1413 Doc: 13 Filed: 06/27/2023 Pg: 2 of 3
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
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