Diaz v. Tocci et al

Filing 15

ORDER DENYING 14 Motion to Withdraw Plaintiff's Response to the Court's Show Cause Order. Signed by Judge David A. Ezra. (wg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
VICTOR DIAZ,
TDCJ No. 1885162,
Plaintiff,
V.
JAMES TOCCI, ET AL.,
Defendants.

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CIVIL NO. SA-16-CA-356-DAE (PMA)

ORDER DENYING POST-JUDGMENT MOTION
TO WITHDRAW AMENDED COMPLAINT
The matter before the Court is plaintiff’s post-judgment motion to withdraw his amended
complaint, filed June 16, 2016 (ECF no. 14). For the reasons set forth below, plaintiff’s motion
will be denied.
I. Background
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 on September 9, 2015 in the
Southern District of Texas, naming as defendants a pair of state district judges, a pair of criminal
defense counsel, a trio of prosecuting attorneys, and several local law enforcement officials
whom plaintiff alleged were involved in conspiracies to have plaintiff convicted in Bexar County
cause nos. 2010-CR-10591 and 2013-CR-1116. Neither of these state criminal convictions has
ever been reversed, vacated, or otherwise abrogated. In a Show Cause Order issued April 18,
2016 (ECF no. 4), the Magistrate Judge explained to plaintiff that his claims were potentially
subject to summary dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) based upon
the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994), various wellestablished legal doctrines, and the application of the statute of limitations to § 1983 claims. The

Magistrate Judge directed plaintiff to file an amended complaint addressing the defects in
plaintiff’s original complaint identified in the Show Cause Order.
Plaintiff subsequently sought and was granted two extensions of time on the deadline for
filing his amended complaint (ECF nos. 6 & 8). On May 31, 2016, plaintiff filed his amended
complaint (ECF no. 10). In an Order and Judgment issued June 16, 2016 (ECF nos. 12 & 13),
this Court dismissed without prejudice as frivolous all of plaintiff’s claims in this cause based
upon the rule in Heck v. Humphrey, well-settled legal principles such as the doctrines of absolute
judicial immunity and prosecutorial immunity, and the applicable statute of limitations.
II. Motion to Withdraw Amended Complaint
Plaintiff filed his motion to withdraw his amended complaint the very day this Court
dismissed all of his claims as frivolous. Plaintiff explains that he now wishes to file a new
version of his amended complaint, but offers no rational explanation for his failure to include all
relevant facts supporting his claims in his amended complaint. Plaintiff also fails to allege any
new facts in support of his claims which could possibly render them more viable than when those
same claims were dismissed as frivolous.
III. Analysis
Plaintiff filed his amended complaint on May 31, 2016, exactly one week after this Court
granted his second motion for extension of time, more than a month after this Court explained
the law applicable to his § 1983 claims in the Show Cause Order, and more than eight months
after he filed his original complaint. Plaintiff had more than adequate opportunity to amend his
original complaint, and did so in an amended complaint (ECF no. 10). For the reasons set forth
at length in this Court’s Memorandum Opinion and Order (ECF no. 12) all of plaintiff’s claims
in this lawsuit are legally frivolous and foreclosed by applicable federal law. Plaintiff’s claims

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