Gawf v. County of San Benito et al

Filing 82

ORDER by Magistrate Judge Howard R. Lloyd denying 67 plaintiff's Motion to Amend/Correct; terminating 77 plaintiff's Motion for hearing. 4/9/2013 motion hearing vacated. (hrllc2, COURT STAFF) (Filed on 4/4/2013)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND THE
COMPLAINT

Plaintiff,

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No. C12-00220 HRL

DAVID GAWF,

v.
COUNTY OF SAN BENITO in its corporate
and municipal capacity; SAN BENITO
COUNTY SHERIFF DEPARTMENT in its
official and municipal capacity; SHERIFF
JASON LEIST in his official and individual
capacity; SHERIFF TOM KEYLON in his
official and individual capacity; SHERIFF KIP
BOWEN in his official and individual capacity;
and DOES 1-25,

[Re: Docket Nos. 67, 77]

Defendants.

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Plaintiff moves for leave to amend his First Amended Complaint (FAC). Defendants

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oppose the motion. The matter is deemed suitable for determination without oral argument, and

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the April 9, 2013 hearing is vacated. Civ. L.R. 7-1(b). Upon consideration of the moving and

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responding papers, the motion is denied.1

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Plaintiff’s motion for leave to amend to include a claim for alleged violation of 18

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U.S.C. § 1001 is denied as futile. That is a criminal statute for which there is no private right of

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action. Rundgren v. Bank of New York Mellon, 777 F. Supp.2d 1224, 1233 (D. Hawai’i 2011)

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Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties have
expressly consented that all proceedings in this matter may be heard and finally adjudicated
by the undersigned.
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(citing cases); Dowdell v. Sacramento Housing & Redevelopment Agency, No. 2:11-cv-00409,

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2011 WL 837046 at *2 (E.D. Cal., Mar. 8, 2011) (citing cases). His motion for leave to amend

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to include a claim under 18 U.S.C. § 1983 is denied as futile because there is no such statute.

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Plaintiff’s motion for leave to amend to include a claim for alleged violation of his Sixth

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Amendment right to obtain favorable witnesses (Jeske) is denied as futile. The Compulsory

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Process Clause of the Sixth Amendment preserves the right of a defendant in a criminal trial to

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use the court’s process to obtain favorable witnesses to testify on his behalf. Washington v.

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Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Here, the charges against

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plaintiff were dropped short of trial.
Plaintiff’s motion for leave to amend to include a claim for alleged violation of 18

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For the Northern District of California

United States District Court

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U.S.C. § 1346 is denied as futile. That is a criminal statute for which there is no private right of

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action. See Taylor v. United States Patent & Trademark Office, No. C12-03851WHA, 2012

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WL 5873685 at *1 (N.D. Cal., Nov. 20, 2012) (citing cases); Estate of Mohammed ex rel.

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Wideman v. City of Morgan Hill, No. 10-cv-05630 EJD, 2012 WL 2150309 at * 6 (N.D. Cal.,

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June 12, 2012) (same).

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Plaintiff’s motion for leave to amend to include a claim for alleged violation of 18

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U.S.C. § 1951 is denied as futile. That is a criminal statute for which there is no private right of

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action. Wisdom v. First Midwest Bank of Poplar Bluff, 167 F.3d 402, 409 (8th Cir. 1999).

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Plaintiff’s motion for leave to amend to include a claim for alleged violation of the False

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Claims Act (FCA) is denied as futile because a party cannot proceed pro se on behalf of the

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government in a such an action. United States ex rel Stoner v. Santa Clara County Office of

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Education, 502 F.3d 1116, 1126-27 (9th Cir. 2007) (“Because qui tam relators are not

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prosecuting only their ‘own case’ but also representing the United States and binding it to any

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adverse judgment the relators may obtain, we cannot interpret [28 U.S.C.] § 1654 as authorizing

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qui tam relators to proceed pro se in FCA actions.”).

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Plaintiff’s motion to amend as to his other proposed claims for relief is denied as

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premature and for the reasons stated in this court’s order granting defendants’ motion to dismiss

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the FAC.
SO ORDERED.
Dated: April 4, 2013

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:12-cv-00220-HRL Notice has been electronically mailed to:

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Michael C. Serverian

[e-mail]

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5:12-cv-00220-HRL Notice sent by U.S. Mail to:

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David Gawf
307 Bishop Avenue
Pacific Grove, CA 93950-9998

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For the Northern District of California

United States District Court

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