Gaspard v. Castillo, et al.

Filing 43

ORDER denying 40 Motion to Amend the Complaint signed by District Judge David G. Campbell on 7/18/2011. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Arthur Gaspard,
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Plaintiff,
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vs.

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D. Castillo, et al.,
Defendants.

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No. 1:08-cv-1484-DGC
ORDER

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Plaintiff pro se and in forma pauperis Arthur Gaspard moves to amend his complaint.

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Doc. 40. Defendants interpret this amendment as seeking to assert new claims under the

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California constitution’s prohibition on cruel and unusual punishment, as well as claims of

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assault under state law. Doc. 42. Defendants oppose amendment, arguing in part that the

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California constitution does not countenance a claim for damages arising from the

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prohibition against cruel and unusual punishment, and that Plaintiff’s claim of assault does

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not comply with California’s Government Claims Act. Id. Plaintiff has not filed a timely

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reply.

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Section 5 of Plaintiff’s second amended complaint seeks as relief, in part,

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“$500,000.00 for [assault] under color of authority [cruel] and unusual punishment, pain and

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suffering, and conspiring to bring about false charges (knowingly), and violating Plaintiff’s

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8th + 14th constitutional amendment rights . . . .” Doc. 14 at 3. The conspiracy claim was

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dismissed by the Court on June 3, 2010 (Doc. 18). The current motion to amend proposes

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to “amend relief section 1983.” Doc. 40 at 1 (see caption). It also states that “Plaintiff is

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asking for $500,000.00 jointly and [separately] from Defendants D. Castillo and J. Soto for

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[assault] under state law [cruel] and unusual punishment, pain and suffering, violations of

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Plaintiff’s 8th and 14th constitutional amendment rights.” Id. at 1-2. Plaintiff’s amendment

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frames the changes he is trying to make to section “V. Relief” as “very small changes in his

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request for relief.” Id. at 2.

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In light of the above language and representations, the Court is not persuaded that

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Plaintiff’s characterization of the amendment is correct: adding new freestanding claims for

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violation of the state constitution and for assault are by no means “very small changes,” as

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such claims would be adding new causes of action rather than merely cleaning up the

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“request for relief.” Accordingly, the Court will decline the invitation to pass on important

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matters of state constitutional and statutory law when doing so is unnecessary. The Court

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will interpret Plaintiff’s amendment as seeking to clarify that his $500,000 in damages is

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being sought “jointly and [separately]” from the two defendants, and that the conspiracy

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claim is no longer being pursued. Such clarifications would be “very small changes” indeed.

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But these “changes” does not require an amendment: the first “change” is merely a

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clarification about how the damage amount in the complaint should be interpreted

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(clarification that Defendants now have), and the second “change” is unnecessary because

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the conspiracy claim was already dismissed by the Court. The Court will therefore deny the

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motion to amend as moot.

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Plaintiff also makes for the fourth time a request for appointment of counsel (Doc. 40

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at 2) but fails to make the showing of exceptional circumstances required under 28 U.S.C.

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§ 1915(e)(1) and Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), as already explained

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by the Court (Docs. 10, 30). The Court will therefore deny the motion.

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IT IS ORDERED that Plaintiff’s motion (Doc. 40) is denied as stated above.

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DATED this 18th day of July, 2011.

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