Martin Pineda Tavar v. Jeffrey L. Sharp

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2013 *
Decided February 15, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐2293
MARTIN PINEDA TAVAR,
Plaintiff‐Appellant,
v.
JEFFREY L. SHARP, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Indiana.
No. 1:11‐cv‐01720‐SEB‐MJD
Sarah Evans Barker,
Judge.
O R D E R
Martin Pineda Tavar appeals the denial of his post‐judgment motion to amend his
complaint in this suit under 42 U.S.C. § 1983 alleging constitutional violations related to his
state‐court conviction on drug trafficking charges. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
*The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that the case is appropriate for summary disposition. Thus the appeal is
submitted on the appellant’s brief and the record. See FED. R. A PP. P. 34(a)(2)(C).

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No. 12‐2293 Page 2
After being convicted by a jury of two counts of dealing heroin and sentenced to
concurrent terms of 50 and 20 years, Tavar sued a state detective, judge, prosecutor, and five
of his own attorneys. According to Tavar, detective McHenry improperly included
information on his nationality and immigration status in a probable‐cause affidavit; Judge
Blankenship authorized his arrest on the basis of the flawed affidavit; the prosecution
unconstitutionally referred to his immigration status at trial; and his attorneys conspired
with state officials to secure his conviction.
The district court dismissed Tavar’s complaint at screening, see 28 U.S.C. § 1915A(b),
finding that it did not include a sufficient legal claim against any of the defendants. Judge
Blankenship, the court concluded, was absolutely immune from liability because she was
described as acting in her judicial capacity. The prosecutor was also immune from suit, the
court noted, for any actions related to his handling of the state’s case. Nor could Tavar bring
any § 1983 claims against his own attorneys, because they did not act under color of state
law. The court also dismissed the claims against detective McHenry, explaining that the
reference to Tavar’s immigration status in a probable‐cause affidavit did not violate any
right secured by the Constitution.
Tavar attempted to file an amended complaint the same day, making only superficial
changes to his original complaint. The district court rejected the amended complaint as
ineffective on the ground that post‐judgment amendments may be made only with leave of
the court after a successful motion under Rule 59(e) or 60(b) of the Federal Rules of Civil
Procedure. Three months later Tavar sought to amend his complaint a second time, and the
court promptly denied the motion on the same basis. Because Tavar’s notice of appeal was
untimely as to all but the district court’s denial of his second motion to amend, we limited
this appeal to review of that order.
On appeal Tavar generally argues that the district court violated due process by
denying his motion to amend his original complaint, despite Federal Rule of Civil
Procedure 15(a)(2)’s directive that such requests be “freely granted when justice so
requires.” But after a final judgment, a plaintiff may amend his complaint only after
successfully moving to vacate or set aside a judgment under Federal Rule of Civil Procedure
59(e) or 60(b), see Foster v. DeLuca, 545 F.3d 582, 583 (7th Cir. 2008); Dubicz v. Commonwealth
Edison Co., 377 F.3d 787, 790 (7th Cir. 2004), which Tavar did not do. Nor should the district
court have construed his motion to amend as a motion under either rule. Tavar submitted
his second amended complaint well outside Rule 59(e)’s 28‐day deadline, and he did not
explain what “exceptional circumstances” would justify the “extraordinary remedy” of
relief under Rule 60(b). See Bakery Mach. & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d
845, 848 (7th Cir. 2009).

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No. 12‐2293 Page 3
Tavar also maintains that the district court should have offered him an opportunity
to amend his complaint before dismissal, but that argument is beyond the scope of this
appeal.
A FFIRMED.

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