Muslim v. Andersen

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:18-cv-00128-MR

SHAHID HASSAN MUSLIM, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

LAURA ANDERSEN, )

)

Defendants. )

_______________________________ )

THIS MATTER comes before the Court for initial review of the

Plaintiff’s Complaint [Civil Case No. 3:18-cv-00128-MR (“CV”), Doc. 1]. The

Plaintiff, who is an incarcerated federal prisoner and proceeding pro se, filed

this action pursuant to Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), against the court reporter who

transcribed the proceedings in his federal criminal prosecution. For the

reasons that follow, the Court dismisses this action with prejudice.

I. BACKGROUND

A. Federal Criminal Proceedings

From at least 2010 and continuing through November 2013, the

Plaintiff, Shahid Hassan Muslim, operated a prostitution ring in Charlotte,

North Carolina. [Criminal Case No. 3:13-cr-00307-RJC-DCK (“CR”), Docs.

24, 210]. He was subsequently indicted by a federal grand jury on ten

counts, including kidnapping, sex trafficking, and sexual exploitation of a

minor. [CR Doc. 24]. Following a week-long jury trial, a jury convicted the

Plaintiff on all counts. [CR Doc. 70]. In May 2016, the Court1 sentenced him

to concurrent sentences on all counts, including three terms of life

imprisonment. [CR Doc. 160]. The Plaintiff appealed. [CR Doc. 162].

While the matter was on appeal, the Plaintiff raised issues regarding

the accuracy of the trial transcripts. The Plaintiff, through his appointed

appellate counsel, moved the Court to order the court reporter, Laura

Andersen (“Ms. Andersen”), to produce her computer hard drive so that the

Plaintiff could attempt to recover the (since deleted) audio recordings of the

trial proceedings. [CR Doc. 185]. The Fourth Circuit suspended briefing of

the appeal and remanded the case to the Court for the limited purpose of

resolving counsel’s motion. [CR Doc. 187]. In June 2017, the Court denied

the Plaintiff’s motion on the grounds that: (1) the court reporter had certified

the transcript as true and correct pursuant to 28 U.S.C. § 753; (2) the court

reporter’s stenographic notes were available for inspection; and (3) the

Plaintiff’s “bald assertions of judicial misconduct” were insufficient to warrant

1 The Honorable Robert J. Conrad, Jr., United States District Judge, presiding.

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accessing the court reporter’s hard drive in an effort to recover the deleted

audio recordings. [CR Doc. 188].

In August 2017, the Plaintiff’s appellate counsel filed a motion in the

Fourth Circuit to correct or modify the transcripts of the proceedings in district

court, arguing that these transcripts contained several inaccuracies. [CR

Doc. 189-1]. Specifically, counsel identified 17 instances in the transcripts

which purportedly contained added, altered, or omitted statements. [Id.].

The Fourth Circuit again suspended the appellate briefing schedule

and remanded the case to the Court for the limited purpose of ruling on the

Plaintiff’s motion to correct or modify. [CR Doc. 189]. On remand, the Court

ordered Ms. Andersen to compare the challenged portions of the transcripts

with her stenographic notes and to certify whether the challenged portions

were accurate or whether they required correction. [CR Doc. 190]. Ms.

Andersen subsequently filed a certification that the transcripts did not contain

any omissions, additions, or altered testimony or statements. [CR Doc. 191].

Thereafter, the Court entered an Order denying the Plaintiff’s motion

to modify or correct the transcripts. In his Order, United States District Judge

Robert J. Conrad, who had presided over the Plaintiff’s criminal proceedings,

noted that he personally had reviewed each challenged portion of the

transcripts and found that “the previously filed official transcripts truly

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disclose what occurred in district court.” [CR Doc. 193 at 2]. Further, Judge

Conrad noted that the Plaintiff had not provided any evidence, such as an

affidavit from trial counsel, to support his contentions that the transcripts

were materially altered. [Id.].

In November 2019, the Fourth Circuit affirmed the Plaintiff’s conviction

and sentence in all respects. [CR Doc. 210].

B. Civil Actions

While the Plaintiff’s criminal appeal was pending, in October 2017, the

Plaintiff filed a civil action against Ms. Andersen in this District, asserting

clams pursuant to Bivens. [Civil Case No. 3:17-cv-00620-FDW (“2017 CV”),

Doc. 1]. Specifically, the Plaintiff asserted that Ms. Andersen intentionally

made alterations to the transcripts in his criminal case. [Id.]. In December

2017, the Court2 conducted an initial review and dismissed the action without

prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994). [2017 CV

Doc. 6]. The Plaintiff appealed this dismissal, but ultimately abandoned his

appeal. [2017 CV Docs. 12, 13].

2 The Honorable Frank D. Whitney, United States District Judge, presiding.

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The Plaintiff filed the present Bivens action in March 2018, again

asserting claims that Ms. Andersen intentionally altered the transcripts in his

criminal case. [CV Doc. 1].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must

review the Amended Complaint to determine whether it is subject to

dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against

a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see

28 U.S.C. § 1915A (requiring frivolity review for prisoners’ civil actions

seeking redress from governmental entities, officers, or employees).

In its frivolity review, the Court must determine whether a complaint

raises an indisputably meritless legal theory or is founded upon clearly

baseless factual contentions, such as fantastic or delusional scenarios.

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se

complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972). However, the liberal construction requirement will not permit a

district court to ignore a clear failure to allege facts in his complaint which set

forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.

Servs., 901 F.2d 387 (4th Cir. 1990).

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III. DISCUSSION

The Plaintiff brings this action pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A

Bivens action seeks damages against a federal official acting under the color

of law for violations of a plaintiff’s constitutional rights. Id. Upon careful

review of the Complaint, the Court concludes that the Plaintiff’s action is

barred by Heck v. Humphrey, 512 U.S. 477 (1994), as well as by the doctrine

of res judicata.

A. Heck v. Humphrey

In Heck, the Supreme Court held that “when a state prisoner seeks

damages in a § 1983 suit, the district court must consider whether a

judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence.” Heck, 512 U.S. at 487. If the Court answers this

question in the affirmative, then “the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Bishop v. Cty. of Macon, 484 F. App’x 753, 755 (4th Cir. 2012)

(citation omitted). The principles of Heck apply equally to actions brought

against federal officials under Bivens. See Poston v. Shappert, 222 F. App’x

301, 301 (4th Cir. 2007); Messer v. Kelly, No. 9707144, 1997 WL 712811, at

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*1 (4th Cir. Nov. 17, 1997) (unpublished); Abella v. Rubino, 63 F.3d 1063,

1065 (11th Cir. 1995).

Here, a judgment in favor of the Plaintiff on the claims asserted would

necessarily imply the invalidity of his conviction. The Plaintiff contends that

Ms. Andersen deliberately altered the transcripts of his criminal proceedings

in order to permit the admission of prejudicial evidence that adversely

affected the outcome of the proceedings. [CV Doc. 1 at 7]. The Plaintiff

further alleges that the purported alterations deprived him of the opportunity

to pursue a meaningful appeal. [Id. at 8]. If the Plaintiff were to succeed on

these claims, that would necessarily imply that his convictions were invalid.

Because the Plaintiff has not demonstrated that his underlying convictions

have already been overturned or otherwise invalidated, the Plaintiff is barred

from pursuing such claims here. See Heck, 512 U.S. at 487.

In sum, because the redress that Plaintiff seeks in this action would

call into question the validity of his criminal convictions, the Court concludes

that the present civil suit must be dismissed pursuant to Heck.

B. Res Judicata

The doctrine of res judicata encompasses two concepts: 1) claim

preclusion and 2) issue preclusion, or collateral estoppel. In re Varat Enters.,

Inc., 81 F.3d 1310, 1315 (4th Cir. 1996) (citing Allen v. McCurry, 449 U.S.

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90, 94 (1980)). Claim preclusion “prevents parties from raising issues that

could have been raised and decided in a prior action—even if they were not

actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashion Grp., Inc.,

140 S. Ct. 1589, 1594 (2020). Issue preclusion is more narrowly drawn and

applies when the later litigation arises from a different cause of action

between the same parties. Varat, 81 F.3d at 1315. Issue preclusion

operates to bar a party “from relitigating an issue actually decided in a prior

case and necessary to the judgment.” Lucky, 140 S. Ct. at 1594 (citing Allen

v. McCurry, 449 U.S. 90, 94 (1980)).

For issue preclusion to apply, the proponent must establish that:

(1) the issue sought to be precluded is identical to

one previously litigated; (2) the issue must have been

actually determined in the prior proceeding; (3)

determination of the issue must have been a critical

and necessary part of the decision in the prior

proceeding; (4) the prior judgment must be final and

valid; and (5) the party against whom estoppel is

asserted must have had a full and fair opportunity to

litigate the issue in the previous forum.

Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998). All

these factors are satisfied here. By the present civil action, the Plaintiff raises

the identical issue that was previously litigated in his criminal case: namely,

that the court reporter materially altered the transcripts of the criminal

proceedings. Indeed, the Plaintiff raised this issue in at least two motions:

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(1) the Motion to Produce Court Reporter Files [CR Doc. 185] and (2) the

Motion for Correction or Modification of Record [CR Doc. 189-1]. Although

these motions were filed after entry of the Judgment and while the criminal

matter was on appeal, in both instances, the Fourth Circuit suspended

briefing and remanded the case so that the district court could consider the

motions.

This issue was actually determined in the prior proceedings in rulings

by the district court. [See CR Docs. 188, 193]. Further, these determinations

were a critical and necessary part of the criminal proceedings, as these

rulings finalized the record that the Fourth Circuit ultimately considered on

appeal. The Plaintiff argued that had his motions been successful, he likely

would have prevailed on appeal and would have been entitled to a new trial.

Further, the Plaintiff had a full and fair opportunity to litigate these issues and

strenuously did so. He was represented by competent counsel, and the

district court fully considered the merits of both motions.

Moreover, the Plaintiff’s criminal judgment is now final. See Berman

v. United States, 302 U.S. 211 (1937) (“Final judgment in a criminal case

means sentence. The sentence is the judgment.”); see, e.g., Sheehan v.

Saoud, 526 B.R. 166, 177 n. 14 (N.D. W. Va. Jan. 28, 2015) (finding that a

criminal judgment was final for purposes of collateral estoppel at

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sentencing). The Plaintiff has been sentenced and his conviction has been

affirmed on appeal. For all these reasons, the Court concludes that res

judicata applies, and the Plaintiff is therefore precluded from relitigating this

issue in the present civil action. Accordingly, the Court will dismiss this action

with prejudice.

ORDER

IT IS, THEREFORE, ORDERED that this action is DISMISSED WITH

PREJUDICE.

The Clerk is instructed to close this civil case.

IT IS SO ORDERED.

Signed: September 21, 2020

a wail

< Reidinger ey

Chief United States District Judge eal

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