Mascorro v. The City of San Diego et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ELOY MASCORRO,
Plaintiff,
v.
THE CITY OF SAN DIEGO, et al.,
Defendants.
Case No.: 21-cv-1725-RSH-DDL
ORDER: (1) STRIKING SECOND
AMENDED COMPLAINT; AND
(2) RE-DIRECTING SERVICE OF
PROCESS OF FIRST AMENDED
COMPLAINT
On November 21, 2025, the Court issued an Order on five separate motions related
to Plaintiff’s First Amended Complaint (“FAC”). ECF No. 98. Relevant here, the Court’s
Order granted Plaintiff leave to file a Second Amended Complaint (“SAC”), subject to a
number of express limitations. See id. Plaintiff filed a SAC on December 28, 2025. ECF
No. 99. For the reasons set forth below, the Court: (1) STRIKES Plaintiff’s SAC; and (2)
DIRECTS the U.S. Marshal’s Service (“USMS”) to re-serve Plaintiff’s FAC on the
remaining Officer Defendants.
I. 	BACKGROUND
Plaintiff filed his Complaint in this action on October 5, 2021, based on an October
6, 2020 incident in which San Diego police officers allegedly “unlawfully detained,
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searched, seized and arrested” him in Balboa Park in San Diego. ECF No. 1 at 2. The
Complaint alleged that officers knowingly arrested Plaintiff without probable cause in
retaliation for his prior complaints of police misconduct and prepared false police reports
about the incident. Id. at 2–3. The Complaint further alleged Plaintiff’s property was
unlawfully seized by the police and later damaged, which Plaintiff discovered when he
retrieved his property. Id. at 2. The Complaint did not identify specific causes of action,
but instead alleged that “[o]n 10/6/2020 my 1st, 2nd, 4th, 6th and 14th amendment rights
were violated,” and further sought recovery of a civil penalty under the Bane Civil Rights
Act. Id. at 2, 4.
On May 11, 2023, the Court dismissed the case without prejudice for failure to
timely effectuate service of process. ECF No. 35. Plaintiff appealed. On April 29, 2025,
the Court of Appeals vacated the order, and remanded the case with instructions to this
Court to forward process to the USMS for service on the City. ECF No. 54 at 2. The
mandate issued on May 19, 2025. ECF No. 55. On May 22, 2025, this Court directed
service by the USMS. ECF No. 56. On May 28, 2025, the USMS served the Complaint on
the San Diego City Attorney’s Office. ECF No. 57.
On June 18, 2025, Plaintiff filed his FAC. ECF No. 58. The FAC names over thirty
defendants. In addition, while Plaintiff’s original Complaint was based on his October 6,
2020 arrest and discovery when he was released from jails days later that his seized
property had been damaged, Plaintiff’s FAC alleges over thirty incidents involving
Plaintiff 	spanning 	from 	March 	2020 	through 	February 	2025. 	Unlike 	the 	original
Complaint, which did not specifically identify any causes of action, the FAC asserts eleven
causes of action: (1) unlawful arrest in violation of the Fourth Amendment; (2) unlawful
search and seizure of property in violation of the Fourth Amendment; (3) retaliation in
violation of the First Amendment; (4) intentional misrepresentation; (5) perjury and
fabrication of evidence in violation of the Fourteenth Amendment; (6) battery; (7)
deliberate indifference to serious medical needs in violation of the Eighth Amendment; (8)
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Monell liability; (9) violation of the Bane Civil Rights Act, Cal. Civ. Code § 52.1; (10)
conversion; and (11) denial of access to the courts in violation of the First Amendment.
On November 21, 2025, the Court issued an Order on five motions: (1) a motion to
dismiss filed by the City of San Diego (the “City”), as well as individual police officers
and a park ranger (collectively, the “City Defendants”), ECF No. 81; (2) a motion to
dismiss filed by Joshua Culver, ECF No. 82; (3) a motion to dismiss filed by Universal
Protection Service, LP d/b/a Allied Universal Security Services, sued as Allied Universal
Security (“Allied”), ECF No. 83; (4) a motion for judgment on the pleadings filed by
Downtown San Diego Partnership, sued as San Diego DTP (“Downtown Partnership”),
ECF No. 95; and (5) Plaintiff’s motion to effectuate service or re-service of process, ECF
No. 77. ECF No. 98. In its Order, the Court granted Plaintiff leave to file a SAC. Id. 19–
21, 24. On December 28, 2025, Plaintiff filed a SAC. ECF No. 99.
II. 	ANALYSIS
A. 	Scope of Leave to Amend
In its November 21, 2025 Order, the Court granted Plaintiff leave to amend as to
Claims Eight and Nine against the City Defendants, Claim Four against Allied and
Downtown, and Claim 10 against Downtown. ECF No. 98 at 20. In granting leave, the
Court held:
With the foregoing limitation, within forty-five (45) days of the date of
this order, Plaintiff may file a second amended complaint. The Court is
mindful of the fact that Plaintiff has already amended his pleading once;
that his amendment multiplied dramatically the number of defendants,
claims, and incidents at least loosely alleged to be at issue in this
lawsuit; and that, although the majority of defendants have not yet
appeared, been served, or had the opportunity to challenge the lawsuit,
significant portions of the lawsuit as amended appear to be time-barred.
Absent a further order of this Court, Plaintiff may not add further
defendants, claims, or incidents in his second amended pleading that
are not present in the Amended Complaint; although he may name any
defendant previously identified by number or as a Doe defendant,
provide factual elaboration of the incidents in the Amended Complaint,
and provide explanation of how his claims relate to the incidents
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alleged. He may also choose to drop, narrow, or focus the defendants,
claims, or incidents at issue.
If Plaintiff fails to timely file a second amended pleading, the Court will
deem his Amended Complaint the operative pleading. If Plaintiff files
a second amended pleading that exceeds the scope of leave to amend
granted herein without further order of the Court, the Court may strike
the second amended pleading.
Id. at 20–21.
Under Federal Rule of Civil Procedure 12, the Court may strike from a pleading “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.
R. Civ. P. 12(f). “[D]istrict courts often strike new claims, parties or factual allegations of
an amended complaint that are beyond the permissible scope of a court’s prior order
granting leave to amend.” Brown v. Stroud, No. CV 08-2348 VRW, 2011 WL 13312050,
at *3 (N.D. Cal. Jan. 28, 2011); Strifling v. Twitter Inc., No. 22-CV-07739-JST, 2024 WL
54976, at *1 (N.D. Cal. Jan. 4, 2024) (“This Court and other courts in this district
consistently strike or dismiss parties and claims that exceed the scope of an order granting
leave to amend.”) (collecting cases).
Here, Plaintiff’s SAC exceeds the scope of the Court’s limited leave in multiple
respects. Specifically, the SAC: (1) names new defendants Detective Clayton, Sergeant
McAnnally, Officer Giovanetti, Ranger Piazza, and Ranger Cassidy1; (2) adds a new claim
for “Failure to Intervene/Integral Participation”; and (3) adds a number of incidents not
pleaded in Plaintiff’s FAC. See SAC ¶¶ 124, 128, 148, 170, 191. As examples, Plaintiff
newly alleges an incident occurring on April 18, 2023, in which Cassidy, Piazza, and
Othniel allegedly blocked Plaintiff’s path while he was riding his bicycle. Id. ¶ 124.
According to Plaintiff, he was unlawfully detained for failing to yield to a pedestrian,
1 Although Officer Giovanetti and Rangers Piazza and Cassidy were previously
identified in Plaintiff’s FAC, they were not named as a defendant and no claims appeared
to be actually asserted against them.
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despite having video evidence of the interaction. Id. The SAC also newly alleges an
incident occurring on February 15, 2025, in which Plaintiff was denied information by an
Internal Affairs dispatcher. Id. ¶ 128. Despite the Court’s advisal that an amended pleading
that exceeds the scope of the leave to amend may be stricken, Plaintiff filed an amended
pleading that clearly exceeded that scope. He did so without seeking leave of the Court.
Consistent with the Court’s previous advisal to Plaintiff, the Court STRIKES
Plaintiff’s SAC. See also Costar Grp., Inc. v. Com. Real Est. Exch., Inc., 150 F.4th 1056,
1064 n.1 (9th Cir. 2025) (holding that district court did not err by dismissing claims outside
scope of amend); Ross v. Wilmington Sav. Fund Soc’y, FSB, No. 222CV07922MCSRAO,
2023 WL 4290406, at *1 (C.D. Cal. Feb. 16, 2023) (striking amended complaint where
plaintiff added new causes of action exceeding scope of leave to amend).
B. 	Service of Process
The Court turns next to Plaintiff’s motion for an order re-directing service of process
of his FAC by the USMS as to the Officer Defendants—which the Court previously
granted. ECF Nos. 77; 98 at 23.
As the Court noted in its November 21, 2025 Order, Plaintiff filed Form 285s on the
docket indicating that Officer Defendants Felix Campante, Geoffrey DeCesari, Nicolas
Dedonato, Mackenzie Fugett, Tyler Hamby and Brian Moreno should be served at 1401
Broadway San Diego, California 92101. ECF No. 67. The USMS promptly delivered
process to a “police records clerk” as to defendants Campante, DeCesari, Fugett, Hamby
and Moreno. ECF Nos. 70, 72, 73, 74, 76. This service was inadequate. See ECF No. 98 at
22–23.
The Court redirects service of process as to defendants Felix Campante, Geoffrey
DeCesari, Nicolas Dedonato, Mackenzie Fugett, Tyler Hamby and Brian Moreno by the
USMS as follows. In contrast to the prior service attempt, the Court DIRECTS the USMS
to request waivers of personal service on Plaintiff’s behalf pursuant to Federal Rule of Civil
Procedure 4(d).
///
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The Court therefore ORDERS as follows:
1. 	The Clerk of Court is DIRECTED to reissue a summons as to Plaintiff’s FAC
and forward it to Plaintiff, along with blank U.S. Marshal Form 285s. Plaintiff
must complete and file the U.S. Marshals Form 285 as accurately as possible,
including a service address for each of defendants Campante, DeCesari,
Dedonato, Fugett, Hamby and Moreno.
2. 	Upon receipt, the Clerk’s Office is DIRECTED to transmit the completed
Form 285s along with copies of the summons and Plaintiff’s FAC to the
USMS for service.
3. 	IT IS FURTHER ORDERED that the USMS shall: (1) serve a copy of
Plaintiff’s 	FAC 	and 	summons 	upon 	defendants 	Campante, 	DeCesari,
Dedonato, Fugett, Hamby and Moreno as directed by Plaintiff on the USM
Form 285s provided to him; (2) request waivers of personal service on
Plaintiff’s behalf; and (3) file executed waivers of personal service upon
defendants Campante, DeCesari, Dedonato, Fugett, Hamby and Moreno with
the Clerk of Court as soon as possible after their return. Should defendants
Campante, DeCesari, Dedonato, Fugett, Hamby and Moreno fail to return the
USMS’s request for waiver of personal service within 90 days, the USMS
must instead file the completed Form USM 285 Process Receipt and Return
with the Clerk of Court, include the date the summons, FAC and request for
waiver was sent to such Defendant, and indicate why service remains
unexecuted. All costs of service will be advanced by the United States;
however, if defendants Campante, DeCesari, Dedonato, Fugett, Hamby and
Moreno are located within the United States and fail without good cause to
sign and return the waiver requested by the Marshal on Plaintiff’s behalf, the
Court will impose upon such Defendant any expenses later incurred in making
personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
///
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4. 	IT 	IS 	FURTHER 	ORDERED 	that 	defendants 	Campante, 	DeCesari,
Dedonato, Fugett, Hamby and Moreno shall, once served, respond to the FAC,
within the time provided by Federal Rules of Civil Procedure.
In light of the Court’s Order, the Court also DENIES Plaintiff’s ex parte motion for
leave [ECF No. 100], Defendants’ motion to dismiss Plaintiff’s SAC [ECF No. 102], and
Plaintiff’s cross-motion to supplement [ECF No. 104] as moot.
IT IS SO ORDERED.
Dated: January 15, 2026
____________________
Hon. Robert S. Huie
United States District Judge
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