United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon Plaintiff Shahid
Hassan Muslim's Motion “to amend and submit further
argument and documentation, supporting his motion for change
of venue, and the urgent neccessity for immediate injunctive
releif.” (Doc. No. 8) (misspellings in original). For
the reasons stated herein, the Motion shall be denied.
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 currently is pending in the Fourth
Circuit Court of Appeals. Appeal Notice, id. at Doc.
October 9, 2017, see Houston v. Lack, 487 U.S. 266,
267 (1988), Plaintiff filed a Complaint pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971) (“Bivens
Complaint” or “Bivens action”), naming
Laura Anderson, the court reporter in his federal criminal
proceedings, as the sole defendant. Plaintiff alleged that
Defendant Anderson intentionally made prejudicial alterations
to some of the transcripts in his criminal case in order to
deny Plaintiff an accurate transcript with which to effect a
meaningful direct appeal. (Compl. 7-12, Doc. No. 1.) Among
the relief sought was an order transferring this action to a
district court outside the Western District of North
Carolina. (Compl. 15.)
Court conducted an initial review of the Bivens
Complaint, see 28 U.S.C. § 1915, and concluded
that it was barred under the well-settled principle that a
plaintiff cannot receive damages or equitable relief for an
allegedly invalid conviction without first having that
conviction reversed, expunged, or called into question by a
writ of habeas corpus. (Doc. No. 6) (citing Heck v.
Humphrey 512 U.S. 477, 486-87 (1994); Wilkinson v.
Dotson, 544 U.S. 74, 81 (2005); Abella v.
Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (holding
that Heck principles apply to both § 1983 and
Bivens actions). By written Order entered on
December 19, 2017, the Court dismissed the Complaint without
prejudice pursuant 28 U.S.C. § 1915(e)(2) for failure to
state a claim on which relief may be granted. (Doc. No. 6.)
Judgment was entered in the Bivens action on
December 19, 2017. (Doc. No. 7.)
December 29, 2017, Plaintiff filed the instant Motion to
amend his Bivens Complaint. (Doc. No. 8.) Plaintiff
also entered a notice of appeal. (Doc. No. 9.) On February 9,
2018, the Fourth Circuit Court of Appeals granted
Plaintiff's motion to voluntarily dismiss his appeal.
(Doc. No. 12-1.)
district court may not grant a post-judgment motion to amend
a complaint unless the judgment is vacated pursuant to Rule
59(e) or Rule 60(b) of the Federal Rules of Civil Procedure.
See Laber v. Harvey, 438 F.3d 404, 427-28 (4th Cir.
2006) (citing Cooper v. Shumway, 780 F.2d 27, 29
(10th Cir. 1985) (“[O]nce judgment is entered the
filing of an amended complaint is not permissible until
judgment is set aside or vacated pursuant to Fed.R.Civ.P.
59(e) or 60(b).”); Scott v. Schmidt, 773 F.2d
160, 163 (7th Cir.1985) (holding same); 6 Charles Allen
Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice & Procedure § 1489; Murrow Furniture
Galleries, Inc. v. Thomasville Furniture Indust., Inc.,
889 F.2d 524, 526 n. 3 (4th Cir.1989) (“The Court
denied their [Rule] 59(e) motion, thereby effectively denying
their [Rule 15(a) ] motion as well.”); DuBuit v.
Harwell Enters., Inc., 540 F.2d 690, 692 (4th Cir. 1976)
(“[T]he final order of the court disposed of all of the
issues between these two plaintiffs and the defendants, and
since no appeals were taken the judgment became a finality
and terminated the case as to them. Under these
circumstances, the case could only be reopened or the order
revised under the provisions of Rule 59 or 60. . .
.”)). The judgment entered in this civil action has not
been vacated, and because Plaintiff voluntarily dismissed his
appeal, the judgment entered on December 19, 2017 (Doc. No.
9) was final and terminated this civil action, see
DuBuit. 540 F.2d at 692.
IS, THEREFORE, ORDERED that Plaintiffs Motion
“to amend and submit further argument and
documentation, supporting his motion for change of venue, and
the urgent neccessity for ...