Williams v. Retort et al

Filing 6

ORDER denying 5 Motion for Reconsideration. Signed by District Judge Robert J. Conrad, Jr on 7/10/2013. (Pro se litigant served by US Mail.)(blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-186-RJC
BRANDON WILLIAMS,
Plaintiff,
v.
OFFICER MT RETORT,
Charlotte Mecklenburg
Police Dept. (“CMPD”);
OFFICER M. DOAN, CMPD;
OFFICER TONSING, CMPD;
OFFICER TOWNSEND, CMPD;
CHARLOTTE MECKLENBURG
POLICE DEPT; BRECKON
DANIEL PAV, M.D.,
Defendants.

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ORDER

THIS MATTER is before the Court on consideration of Plaintiff’s motion to reconsider
and what the Court construes as a motion to amend his complaint.
On June 6, 2013, the Court entered an Order dismissing Plaintiff’s complaint, filed
pursuant to 42 U.S.C. § 1983. (Doc. No. 3). The findings and conclusions of law in that Order
are fully incorporated herein by reference. (Id.). On July 1, 2013, Petitioner filed the present
motion seeking reconsideration of the Court’s Order of dismissal and seeking to amend his
complaint to add a defendant and a claim for monetary damages. (Doc. No. 5).
The Court finds that Plaintiff’s motion to reconsider is timely filed under Rule 59(e) of
the Federal Rules of Civil Procedure because it was filed within 28 days from entry of the clerk’s
judgment. (Doc. No. 4). Plaintiff’s motion to reconsider will be denied, however, for the reasons

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stated in the Court’s June 6 Order of dismissal. Namely, according to the North Carolina
Administrative Office of the Courts, Plaintiff is still facing what appear to be eight (8) criminal
charges in connection with his arrest and the factual allegations he raises in his complaint. As the
Court found in the Order of dismissal, these charges are calendared for hearing in state court in
Mecklenburg County on September 23, 2013. The Court will not intervene through injunctive
relief in ongoing state criminal proceedings.
Plaintiff’s motion to amend his complaint to add a sheriff’s deputy will be denied for two
reasons. First—for the reasons previously stated in the Order of dismissal and herein—Plaintiff’s
criminal proceedings are ongoing. Second, the clerk has already entered judgment in this case
and the Court finds that an order setting aside this judgment through a Rule 59(e) motion, or any
other rule, is improper in light of the ongoing criminal proceedings. See Laber v. Harvey, 438
F.3d 404 (4th Cir. 2006). In Laber, the Fourth Circuit explained that the standard for leave to
amend a complaint under Rule 15 of the Federal Rules of Civil Procedure is the same, whether
filed pre-judgment or post-judgment. The critical difference between a pre-and post-judgment
motion is that once the judgment is entered in a civil case that judgment must first be set aside
under, for instance, Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Id. at 427.
The Court finds the judgment should not be set aside under Rule 59(e) for the reasons
stated in the Court’s Order of dismissal and herein. Plaintiff may pursue constitutional challenges
to his state arrest through the state criminal proceedings. If Plaintiff prevails on some or all of the
criminal charges, he may pursue relief through a Section 1983 action, although the Court
expresses no opinion on the merits of such an action.

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IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s motion to reconsider the Court’s Order of dismissal, (Doc. No. 5), is
DENIED;
2. Plaintiff’s motion to amend his complaint to include Daniel Bailey, Jr. of the
Mecklenburg County Sheriff’s Department, (Doc. No. 5), is DENIED without
prejudice.
3. Plaintiff’s motion to amend his complaint to include a claim for monetary damages,
(Doc. No. 5), is DENIED without prejudice.

Signed: July 12, 2013

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