Opinion
Civil No. 08-cv-1197 JTM (JMA).
August 4, 2009
ORDER: 1) GRANTING PLAINTIFF'S REQUEST TO AMEND COMPLAINT; and 2) DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT Doc. Nos. 23 and 27
On August 15, 2008, Plaintiff, an inmate currently incarcerated at Kern Valley State Prison in Delano, California and proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Defendants moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 23.) Along with his opposition, Plaintiff included a request for leave to file a First Amended Complaint to include additional factual allegations. (Doc. No. 27.)
Under Federal Rule of Civil Procedure 15(a), "[a] party may amend its pleading once as a matter of course . . . before being served with a responsive pleading. . . ." As Defendants have not yet filed a responsive pleading, Plaintiff may file a First Amended Complaint without leave of court. Thus, his request is GRANTED. If Plaintiff wishes to file a First Amended Complaint, he must do so no later than September 8, 2009.
Because a First Amended Complaint would supercede the target of Defendants' pending motion, Defendants' motion to dismiss is DENIED without prejudice as moot. If Plaintiff does not file a First Amended Complaint by the date specified above, Defendants are free to re-file their motion.