Opinion
CASE NO. 3:20-CV-5078-BHS-DWC
01-07-2021
JOHN EDWARD BETTYS, Plaintiff, v. JOHN HAMIL, et al., Defendant.
REPORT AND RECOMMENDATION Noting Date: January 22, 2021
Plaintiff John Edward Bettys, proceeding pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983. The District Court has referred this action to United States Magistrate Judge David W. Christel. Pending before this Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint. Dkt. 62. For the reasons discussed below, the Court recommends Defendants' motion be denied without prejudice as moot.
In response to Defendants' motion, Plaintiff sought leave to amend. Dkt. 72. The Court granted Plaintiff's request, requiring Plaintiff to file his second amended complaint by January 1, 2021. Dkt. 76. Plaintiff submitted his Second Amended Complaint for mailing on December 27, 2020 and it was filed by the Clerk on January 4, 2021. Dkt. 77.
January 1, 2021 was a legal holiday, making the actual filing deadline January 4, 2021. Fed. R. Civ. P. 6(a)(1)(C).
An amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). The original complaint is "treated thereafter as non-existent." Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Defendants' Motion to Dismiss attacks the Amended Complaint, which is now "non-existent" because Plaintiff has filed the Second Amended Complaint. See id., Dkt. 77. Accordingly, the Court recommends denying Defendants' Motion to Dismiss without prejudice. Bromfield v. McBurney, 2008 WL 623322, *2 (W.D. Wash. March 3, 2008) (recommending the defendants' motion to dismiss be denied as moot because an amended complaint was filed, which operated as a complete substitute for the original complaint).
The Court notes Defendants may refile a motion to dismiss the Second Amended Complaint.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on January 22, 2021 as noted in the caption.
Dated this 7th day of January, 2021.
/s/_________
David W. Christel
United States Magistrate Judge