Howard v. Deazevedo

Filing 37

ORDER Denying Plaintiff's Motion For Leave To File A Second Amended Complaint (Doc. 31 ), signed by Magistrate Judge Sheila K. Oberto on 1/29/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY HOWARD,

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Plaintiff,

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CASE NO. 1:11-cv-00101-AWI-SKO PC
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO FILE A SECOND AMENDED
COMPLAINT

v.
D. L. DeAZEVEDO, et al.,

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(Doc. 31)

Defendants.
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Plaintiff Timothy Howard, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on January 20, 2011. On December 26, 2012,

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Plaintiff filed a motion seeking leave to amend. Fed. R. Civ. P. 15(a). Defendants did not file a

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response. Local Rule 230(l).

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Plaintiff amended once as a matter of course on August 17, 2011, and therefore, he may now

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amend only with leave of court. Fed. R. Civ. P. 15(a)(1), (2). While leave to amend should be freely

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given when justice so requires, here no such showing has been made. Fed. R. Civ. P. 15(a)(2).

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Plaintiff’s first ground for seeking leave to amend is to add facts. Plaintiff’s amended

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complaint survived a motion to dismiss brought pursuant to Federal Rule of Civil Procedure

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12(b)(6), and it is not deficient with respect to Plaintiff’s present claims.

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Plaintiff’s second ground for amendment is the deletion of issues pertaining to claims which

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were dismissed, to avoid jury confusion. This is a non-issue, as Plaintiff’s claims will be framed for

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the jury via evidence at trial, of which a copy of the pleading is not included; jury instructions; and

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a verdict form. It is entirely unnecessary to amend to delete claims or parties in an effort to aid the

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jury.
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Finally, Plaintiff seeks to add a state law claim against Defendant DeAzevedo for violating

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section 118.1 of the California Penal Code, which prohibits peace officers from filing false reports.

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Plaintiff does not have a private right of action against Defendant DeAzevedo for violation of section

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118.1 and allowing Plaintiff to amend to add the claim would be futile. Simpson v. Feltsen, No.

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2:09-cv-00302-MSB, 2010 WL 1444487, at *6 (E.D.Cal. Apr. 9, 2010); Young v. City of Visalia,

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687 F.Supp.2d 1155, 1167 (E.D.Cal. Jan. 15, 2010); Jackson v. City of Pittsburg, No. C 09-01016

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WHA, 2009 WL 1684701, at *2 (N.D.Cal. Jun. 12, 2009); Lee v. Scribner, No. 1:05-cv-00802-

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OWW-WMW (PC), 2009 WL 1211400, at *10 (E.D.Cal. May 1, 2009); Flowers v. County of

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Fresno, No. CV F 09-0051 LJO GSA, 2009 WL 1034574, at *11 (E.D.Cal. Apr. 16, 2009).

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For these reasons, Plaintiff’s motion for leave to amend is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:
ie14hj

January 29, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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