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Muslim v. Anderson

United States District Court, W.D. North Carolina, Charlotte Division

December 19, 2017



          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court on initial review of Plaintiff Shahid Hassan Muslim's pro se civil Complaint. (Doc. No. 1.) Also before the Court is Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs (“IFP Application”) (Doc. No. 2), which shall be granted.[1]

         I. BACKGROUND

         Plaintiff, a prisoner in the custody of the Federal Bureau of Prisons, was convicted after a jury trial in this Court of ten felony offenses, including production of child pornography, kidnapping by force, sex trafficking of a minor, sex trafficking by force, fraud, or coercion, and witness tampering. See Judgment, United States v. Muslim, No. 3:13-cr-00307-RJC (W.D. N.C. filed May 18, 2016), Doc. No. 160. The Court imposed concurrent sentences in all counts, including three life sentences. Id. Judgment was entered on May 18, 2016. Id. Plaintiff has filed a direct appeal, which is pending in the Fourth Circuit Court of Appeals. Appeal Notice, id. at Doc. No. 162.

         Plaintiff filed the instant action on October 9, 2017, see Houston v. Lack, 487 U.S. 266, 267 (1988), naming Laura Anderson, the court reporter in his federal criminal proceedings, as the only defendant. Plaintiff alleges that between June 4, 2015, and July 28, 2016, Defendant Anderson intentionally made prejudicial alterations to some of the transcripts in his criminal case, including removing or altering witness testimony, and removing or altering on-the-record statements made by the trial judge, the prosecuting attorneys, and Plaintiff's own attorney(s) that demonstrated individual or collective misconduct. Plaintiff contends that Defendant made these alterations in order to deny Plaintiff an accurate transcript with which to effect a meaningful appeal. (Compl. 7-12, Doc. No. 1.) Plaintiff alleges further that Defendant colluded with and acted at the behest of District Court Judge Robert J. Conrad and Assistant United States Attorney Kimlani Ford.

         Plaintiff seeks punitive and compensatory damages against Defendant for infliction of “severe emotional damage, ” including “extreme stress, nausea, nightmares, insomnia, decreased appetite, aches, pains, fatigue, headaches, [and] frequent . . . thoughts of dread, apprehensiveness, and [suicide].” (Compl. 14, 16-18.) Plaintiff also seeks injunctive relief in the nature of: an order requiring Defendant to surrender her computer hard drive to an outside expert for recovery and transcription of deleted audio from Plaintiff's trial; a stay in all proceedings in which Plaintiff, Defendant, and District Judge Robert J. Conrad are involved, until this action is adjudicated; transfer of this action to another federal district; investigation by the Department of Justice; and an order prohibiting witness tampering and destruction of evidence related to this action. (Compl. 15-16.)


         Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “frivolous, ” “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). In its frivolity review, the Court must determine whether the Complaint raises an “indisputably meritless legal theory, ” Denton v. Hernandez, 504 U.S. 25, 32 (1992), or is founded upon clearly baseless factual contentions, such as “fantastic or delusional scenarios, ” Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). While a pro se complaint must be construed liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), the liberal construction requirement will not permit a district court to ignore a plaintiff's clear failure to allege facts which set forth a claim that is cognizable under federal law, see Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).


         Plaintiff is a federal prisoner seeking equitable and monetary relief on the basis of an alleged constitutional violation perpetrated by a federal actor subsequent to Plaintiff's conviction. Plaintiff brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens action seeks damages against a federal employee acting under the color of law for violations of a plaintiff's constitutional rights. Id.

         As an initial matter, the Court lacks jurisdiction over Plaintiff's Complaint against Defendant in her official capacity (Compl. 8). A Bivens action cannot lie against a federal employee acting in her official capacity. See Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (“Bivens did not abolish the doctrine of sovereign immunity of the United States. Any remedy under Bivens is against federal officials individually, not the federal government.”). Plaintiff also sues Defendant in her individual capacity, however. (Compl. 8.)

         According to the Complaint, at some point before he was sentenced (Compl. 12), Plaintiff filed a judicial complaint against trial Judge Robert Conrad, alleging “judicial bias, and that the judge purposely admitted ‘other bad acts evidence' and testimony, and that Robert Conrad purposely admitted clearly inadmissable evidence, in order to insure the complainants [sic] conviction” (Compl. 8). Plaintiff claims Defendant covered up the misconduct alleged in the judicial complaint, as well as evidence of collusion between the judge, one of the prosecuting attorneys, and Plaintiff' own attorney to deprive Plaintiff of a fair trial, by altering the trial transcripts. (Compl. 8, 10-11.) Plaintiff contends Defendant acted “with the specific intent of denying the complainant his right to a meaningful appeal” (Compl. 7). (Compl. 8, 10-11.)

         A criminal defendant “does not have a constitutional right to a totally accurate transcript of his criminal trial.” Tedford v. Hepting, 990 F.2d 745, 747 (3d Cir. 1993). “His constitutional rights would be violated only if inaccuracies in the transcript adversely affected the outcome of the criminal proceeding.” Id.

         Plaintiff was convicted by a jury, which “acted on the basis of the evidence they saw and heard, rather than on the basis of the written transcript of the trial-which was, of course, nonexistent until after the trial was completed.” Id. Accordingly, a constitutional violation would occur “only if the inaccuracies in the transcript adversely affected appellate review.” Id.; see also United States v. Brown, 202 F.3d 691, 696 (4th Cir. 2000) (“[O]missions from a trial transcript only warrant a new trial if ‘the missing portion of the transcript specifically prejudices [a defendant's] appeal.'”) (quoting United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985); United States v. Huggins, 191 F.3d 532, 536 (4th Cir. 1999))); Huggins, 191 F.2d at 537 (“[T]o obtain a new trial, . . . the defendant must show that the transcript errors specifically prejudiced ...

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