         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




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