United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 21, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-21242
Summary Calendar
EDMUND B. HEIMLICH,
Plaintiff-Appellant,
versus
HARRIS COUNTY, TEXAS; JOHNNY B. HOLMES; WERNER VOIGT; TED POE;
JOHN BOONE; BALDWIN CHIN; STUART W. BROWN; JUDY BEDDINGFIELD;
ERNEST W. GODFREY, III; DENNIS RAY KUITHE; STATE OF TEXAS;
ANTONIO GARZA,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-2556
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Edmund B. Heimlich appeals the denial of his FED. R. CIV. P. 15
motion to amend his pleadings to reflect that the state appellate
court had reversed his criminal conviction. Heimlich argues that
the district court did not have the discretion to deny his motion
to amend because the district court did not give a “substantial
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
reason” for the denial. He also contends that the denial of the
motion places “[p]rocedure ... over substance to conceal evidence
and obstruct justice.”
“Post-judgment amendment to a complaint can only occur once
the judgment itself is vacated under FED. R. CIV. P. 59 or 60.”1 The
judgment against Heimlich was not vacated under either of these
rules. In cases where a party seeks to amend a complaint after
entry of judgment, “we have consistently upheld the denial of leave
to amend where the party seeking to amend has not clearly
established that he could not reasonably have raised the new matter
prior to the trial court's merits ruling.”2 Heimlich has made no
such showing. Consequently, Heimlich’s appeal of the district
court’s refusal to allow him to amend his pleadings five years
after the judgment is without arguable merit and is frivolous. The
appeal is therefore DISMISSED.3 Heimlich’s outstanding motions are
DENIED.
1
See Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000);
see also Whitaker v. City of Houston, 963 F.2d 831, 834-36 (5th
Cir. 1992).
2
Briddle v. Scott, 63 F.3d 364, 380 (5th Cir.1995); see also
6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1489 (2d ed.
1990 & Supp. 1999).
3
See 5TH CIR. R. 42.2.