Filed: May 25, 2012
Latest Update: Mar. 26, 2017
Summary: 11-2897-pr Velez v. Fischer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
Summary: 11-2897-pr Velez v. Fischer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A..
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11-2897-pr
Velez v. Fischer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 25th day of May, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DENNY CHIN,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 John Velez,
15
16 Plaintiff-Appellant,
17
18 v. 11-2897-pr
19
20 John W. Burge, Supt. Elmira C.F.,
21 Hartke, Corr. Officer, Bruner,
22 Corr. Officer,
23
24 Defendants-Appellees,
25
26 Brian Fischer, Comm. NYS DOCS,
27 Jane Doe, Registered Nurse,
28
29 Defendants.
30 _____________________________________
1
1
2 FOR PLAINTIFF-APPELLANT: John Velez, pro se, Stormville, NY.
3
4 FOR DEFENDANT-APPELLEE: Zainab A. Chaudhry, Assistant
5 Solicitor General (Barbara D.
6 Underwood, Solicitor General,
7 Andrea Oser, Deputy Solicitor
8 General, on the brief), for Eric T.
9 Schneiderman, Attorney General of
10 the State of New York, Albany, NY.
11
12 Appeal from the judgment of the United States District Court
13 for the Western District of New York (Arcara, J.).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
15 DECREED that the judgment of the district court is AFFIRMED.
16 Plaintiff-Appellant John Velez appeals the dismissal on
17 summary judgment of his complaint brought pursuant to 42 U.S.C.
18 § 1983 and the denial of his motion to amend. We assume the
19 parties’ familiarity with the underlying facts, procedural
20 history, and issues on appeal.
21 Denial of leave to amend is reviewed for abuse of
22 discretion. See Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir.
23 2009); see also Sims v. Blot,
534 F.3d 117, 132 (2d Cir. 2008) (A
24 district court has abused its discretion if it based its ruling
25 on an erroneous view of the law or on a clearly erroneous
26 assessment of the evidence, or rendered a decision that cannot be
27 located within the range of permissible decisions.”) (internal
28 citations, alterations, and quotation marks omitted)). Although
29 “[a] court should freely give leave [to amend] where justice so
2
1 requires,” Fed. R. Civ. P. 15(a)(2),this "must be balanced
2 against the requirement under Rule 16(b) that the Court’s
3 scheduling order shall not be modified except upon a showing of
4 good cause.” Holmes, 568 F.3d at 334-35 (citation and internal
5 quotation marks omitted); see also Fed. R. Civ. P. 16(b)(4).
6 Velez attempted to add Captain Hughes as a defendant 18
7 months after the magistrate judge's deadline for amending
8 pleadings, and has not shown good cause for the delay. On this
9 record, we cannot say that the district court abused its
10 discretion in denying Velez’s motion to amend. See Grochowski v.
11 Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (finding no abuse
12 of discretion in denial of leave to amend where “[t]he plaintiffs
13 delayed more than one year before seeking to amend their
14 complaint” and, at the time they filed their motion, discovery
15 had been completed and a summary judgment motion was pending).
16 We review orders granting summary judgment de novo and focus
17 on whether the district court properly concluded that there was
18 no genuine issue as to any material fact and the moving party was
19 entitled to judgment as a matter of law. See Miller v. Wolpoff &
20 Abramson, LLP,
321 F.3d 292, 300 (2d Cir. 2003).
21 It is well-settled that a “prison inmate has no
22 constitutionally guaranteed immunity from being falsely or
23 wrongly accused of conduct which may result in the deprivation of
24 a protected liberty interest.” Freeman v. Rideout,
808 F.2d 949,
3
1 951 (2d Cir. 1986); see also Boddie v. Schnieder, 105 F.3d 857,
2 862 (2d Cir. 1997) (“[A] prison inmate has no general
3 constitutional right to be free from being falsely accused in a
4 misbehavior report.”). The inmate must show something more, such
5 as that he was deprived of due process during the resulting
6 disciplinary hearing, or that the misbehavior report was filed in
7 retaliation for the inmate’s exercise of his constitutional
8 rights. See Boddie, 105 F.3d at 862; Freeman, 808 F.2d at 951.
9 Velez urges us to revisit and reconsider these cases. We decline
10 the invitation.
11 Finding no merit in Velez's remaining arguments, we hereby
12 AFFIRM the judgment of the district court.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
4
