Williams v. DeVetter et al
MEMORANDUM AND ORDER - Plaintiff's Motion to Rectify and Amend Judgment (filing no. 17 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN DEVETTER, et al.,
This matter is before the court on Plaintiff’s Motion to Rectify and Amend
Judgment. (Filing No. 17.) As set forth below, Plaintiff’s Motion is denied.
Plaintiff brings his Motion to Rectify or Amend Judgment pursuant to Federal
Rule of Civil Procedure 59(e). (Filing No. 17 at CM/ECF p. 1.) In this Motion,
Plaintiff argues that the court ignored that his claims were based on Skinner v. Switzer,
131 S. Ct. 1289 (2011). (Filing No. 17 at CM/ECF p. 2.) Plaintiff states the court
recharacterized his claims as “Bivens” claims and asks the court to “rectify” the
Complaint, or in the alternative, allow him to amend his Complaint.1 (Id. at CM/ECF
A motion to alter or amend a judgment “must be filed no later than 28 days after
the entry of the judgment.” Fed. R. Civ. P. 59(e). In this matter, the court entered
Judgment on April 8, 2013. (Filing No. 15.) Plaintiff filed his Motion to Rectify or
Amend on April 29, 2013. (Filing No. 17.) Accordingly, Plaintiff’s Motion is timely.
Contrary to Plaintiff’s assertion, the first paragraph of his Complaint states:
“This is a civil rights action under Bivens v. Six Unknown Federal Agents, 403 U.S.
388 (1971), filed by Plaintiff Shannon Williams a pauper in federal custody serving
a 40 year sentence at the United States Penitentiary in Atwater, California.” (Filing
No. 1 at CM/ECF p. 1.)
However, as set forth by the Eighth Circuit, “Rule 59(e) motions serve the
limited function of correcting manifest errors of law or fact or to present newly
discovered evidence . . . . Such motions cannot be used to introduce new evidence,
tender new legal theories, or raise arguments which could have been offered or raised
prior to entry of judgment.” U.S. v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933
(8th Cir. 2006) (internal citations and quotations omitted).
Liberally construed, Plaintiff asks that the court “rectify” and amend the
Judgment because he was trying to bring his claims pursuant to Skinner. (Filing No.
17 at CM/ECF pp. 1. 4.) In Skinner, a prisoner plaintiff had twice moved for, but was
denied, postconviction DNA testing under Tex. Code. Crim. Proc. Ann. art. 64.01(a).
Thereafter, the plaintiff filed a federal claim under 42 U.S.C. § 1983 seeking to
compel Texas to permit him access to evidence for DNA testing. As the Court
explained, such a claim did not constitute a challenge to the validity of the plaintiff’s
Success in [plaintiff’s] suit for DNA testing would not “necessarily
imply” the invalidity of his conviction. While test results might prove
exculpatory, that outcome is hardly inevitable; . . . results might prove
inconclusive or they might further incriminate [plaintiff].
Skinner, 131 S. Ct. at 1298. In this matter, Plaintiff is not seeking to test DNA
evidence after his conviction was affirmed on appeal. Rather, Plaintiff alleges that he
has been “denied a fair opportunity to prove his actual innocence” in his pending
criminal appeal because Defendants have deliberately changed trial transcripts in an
effort to “hide and suppress prosecutorial and judicial misconduct.” (Filing No. 1 at
CM/ECF p. 10.) Such claims must be preceded by a favorable disposition of
Plaintiff’s conviction and are barred by Heck. See, e.g., Murphy v. Bloom, 443 Fed.
App’x 668, 669, 2011 WL 3837768, at *1 (3d Cir. Aug. 31, 2011) (concluding
plaintiff’s success on claims regarding the alteration of his trial transcript would
necessarily imply the invalidity of his conviction and would not be cognizable under
Heck); Hall v. Woodall, No. 98-5344, 1999 WL 313886, at *1-2 (6th Cir. May 3,
1999) (finding plaintiff’s claim that defendants “changed the transcript to ‘favor’ the
state” and that the “condition of the transcript interfered with his right to effective
appellate review” was barred by Heck).
Alternatively, Plaintiff asks the court to grant his Motion so that he can amend
his Complaint. (Filing No. 17 at CM/ECF p. 4.) As discussed above, Plaintiff cannot
use a Rule 59(e) motion to introduce new evidence, tender new legal theories, or raise
arguments which could have been offered prior to the entry of Judgment.
Accordingly, Plaintiff is not entitled to relief under Rule 59(e). Further, the court
specifically dismissed Plaintiff’s Complaint without prejudice to reassertion in his
criminal appeal or in a habeas corpus or similar proceeding. (Filing No. 14 at
CM/ECF p. 6.)
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Rectify and Amend
Judgment (filing no. 17) is denied.
DATED this 7th day of May, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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