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NONPRECEDENTIAL DISPOSITION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. APP. P. 34(a)(2)(C).
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).
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.

AFFIRMED.