Ballard v. Buchanan et al

Filing 12

ORDER denying Plaintiffs 11 Motion to Order Record on Appeal,Order of Transcripts, and Motion for Extension of Time to File Motion to Alter or Amend Judgment. Signed by Chief Judge Frank D. Whitney on 2/18/2016. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15-cv-173-FDW
MARK WAYNE BALLARD,

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Plaintiff,
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vs.
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MARCELLUS BUCHANAN, et al.,
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Defendants.
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_________________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s “Motion to Order Record on
Appeal, Order of Transcripts, and Motion for Extension of Time to File Motion to Alter or
Amend Judgment.” (Doc. No. 11).
On August 10, 2015, pro se Plaintiff Mark Wayne Ballard, a federal inmate incarcerated
at Marianna Federal Correctional Institution, filed the underlying lawsuit pursuant to 42 U.S.C. §
1983, bringing claims of various constitutional violations against Defendants. In an Order dated
Auugst 12, 2015, this Court conducted an initial review and dismissed Plaintiff’s action without
prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994). See (Doc. Nos. 3; 4).
On February 8, 2016, Plaintiff filed the pending motion, in which he appears to seek “the
docket record on appeal and order of transcripts,” and a motion for extension of time to file a
motion to alter or amend judgment, and he argues that this Court should alter its prior dismissal.
First, to the extent that the motion is in the nature of a motion to alter or amend the prior
judgment of the Court under Rule 59(e) of the Federal Rules of Civil Procedure, the United
States Court of Appeals for the Fourth Circuit has stated:

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A district court has the discretion to grant a Rule 59(e) motion only in very
narrow circumstances: “(1) to accommodate an intervening change in controlling
law; (2) to account for new evidence not available at trial; or (3) to correct a clear
error of law or to prevent manifest injustice.”
Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (quoting Collison v. Int’l Chem. Workers
Union, 34 F.3d 233, 236 (4th Cir. 1994)).
Here, the Court dismissed Plaintiff’s underlying action as barred by Heck v. Humphrey.
Plaintiff has not shown the existence of the limited circumstances under which a Rule 59(e)
motion may be granted. That is, Plaintiff’s motion does not present evidence that was
unavailable when he filed his Complaint, nor does his motion stem from an intervening change
in the applicable law. Furthermore, Plaintiff has not shown that a clear error of law has been
made, or that failure to grant the motion would result in manifest injustice to him. See Hill, 277
F.3d at 708. In sum, the Court will deny Plaintiff’s motion. The Court further notes that to the
extent that Plaintiff seeks, through his motion, the “record on appeal,” he did not file a notice of
appeal in this case, despite that on September 22, 2015, this Court entered an order granting
Plaintiff an extension of time to file a notice of appeal. See (Doc. No. 9). To the extent that
Plaintiff seeks transcripts or records from his underlying federal criminal action, he must bring
his motion in that action. Furthermore, to the extent that Plaintiff states in his current motion
that he seeks relief from his underlying federal conviction under the All Writs Act, pursuant to
28 U.S.C. § 1651, he must file a new action, as this Section 1983 action has already been
dismissed.
IT IS, THEREFORE, ORDERED that Plaintiff’s “Motion to Order Record on Appeal,
Order of Transcripts, and Motion for Extension of Time to File Motion to Alter or Amend
Judgment,” (Doc. No. 11), is DENIED.
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