Montelongo v. Phoenix, City of et al

Filing 46

ORDER - IT IS ORDERED DENYING pla's 36 Motion to Amend. Signed by Judge Frederick J Martone on 5/1/09.(SAT)

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dino Montelongo, Plaintiff, vs. City of Phoenix, et al., Defendants.

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No. CV-08-1694-PHX-FJM ORDER

The court has before it plaintiff's motion for leave to amend the complaint to add a claim of malicious prosecution (doc. 36), and defendants' response (doc. 44). Plaintiff did not file a reply in support of his motion. Under Rule 15(a)(2), Fed. R. Civ. P., a party may amend a complaint after a responsive pleading has been served, "only with the opposing party's written consent or the court's leave." We must grant leave to amend "when justice so requires." Id. A motion for leave to amend may be denied if it appears to be futile or legally insufficient. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). We apply the same standard for determining the legal sufficiency of a proposed amendment that we apply in deciding a Rule 12(b)(6) motion. Id. In order to state a § 1983 claim for malicious prosecution, a plaintiff must allege that state or local officials "improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful

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or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004) (citation omitted). Plaintiff now seeks to amend his complaint by adding a claim for "Violation of 42 U.S.C. § 1983 ­ Malicious Prosecution and Wrongful Use of the Judicial Process." At the same time, however, he deletes from his amended complaint all of the factual allegations that would support that claim. See Proposed Amended Complaint ¶ 34 (omitted). The only remaining allegation that would even arguably support a claim for malicious prosecution is that "the Defendants, under color of state law, yet without probable cause and due process, unlawfully conspired to deprive Plaintiff of his rights and of his liberty." Proposed Amended Complaint ¶ 13. This is wholly inadequate. "[A] plaintiff's obligation to provide the `ground' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007) (citation omitted). The proposed amended complaint is legally insufficient to state a claim for malicious prosecution and therefore the amendment is denied. IT IS ORDERED DENYING plaintiff's motion to amend (doc. 36). DATED this 1st day of May, 2009.

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