Opinion
C.A. No. 00-562L
July 12, 2001
Report and Recommendation
This matter is before the Court on the motion of the defendant, the Rhode Island Department of Corrections for summary judgement pursuant to Rule 56 of the Federal Rules of Civil Procedure. The pro se plaintiff, Ashanti Shakur, has opposed the motion.
This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the instant motion be denied as moot.
Background
The pro se plaintiff, Ashanti Shakur, filed a Complaint pursuant to 42 U.S.C. § 1983 on November 8, 2000, alleging a violation of his Eighth Amendment rights. Plaintiff, in his Complaint, named as a defendant the Rhode Island Department of Corrections.
The defendant, instead of answering the complaint or filing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b), filed a motion for summary judgement, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff objected to the defendant's motion. The plaintiff then, pursuant to Fed.R.Civ.P. 15(a), filed with the Court an Amended Complaint.
Discussion
Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend his pleading without leave of the court once as a matter of course at any time before a responsive pleading is served. See Fed.R.Civ.P. 15(a). A motion for summary judgement is not a responsive pleading within the meaning of Rule 15(a). See Fed.R.Civ.P. 7(a); See Rogers v. Girard Trust Co., 159 F.2d 239 (6th Cir. 1947). Thus, plaintiff may properly amend his Complaint, without leave of the Court.
Once plaintiff filed with the Court his Amended Complaint, the Amended Complaint superseded the original complaint and rendered the original complaint of no legal effect. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Thus, defendant's motion for summary judgement, which is based upon the original complaint, is moot. See Miller v. American Export Lines. Inc., 313 F.2d 218 (2nd Cir. 1963). Accordingly, defendant's motion for summary judgement should be denied. I so recommend.
Conclusion
For the reasons stated above, I recommend that the defendant's motion for summary judgement be denied as moot. Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 16 F.2d 603 (1st Cir. 1980).