Opinion
Case No. 07-13134.
December 14, 2007
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND COMPLAINT AND DENYING DEFENDANT'S MOTION TO DISMISS AS MOOT
Before the court is Defendant's motion to dismiss, filed October 1, 2007. Plaintiff filed a response to Defendant's motion, as well as a motion to amend the complaint, on October 22, 2007. Defendant did not respond to Plaintiff's motion to amend the complaint.
Plaintiff's complaint alleges violations of 42 U.S.C. § 1983, which requires that the defendant act under color of state law. Defendant, a Customs and Border Patrol officer, acted under color of federal law in this case. Plaintiff contends that the allegations under § 1983 were made inadvertently. Plaintiff requests permission to amend the complaint pursuant to Fed.R.Civ.P. 15(a) to allege a claim pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) rather than § 1983.
Given the early procedural posture of this case and that Defendant has not alleged that he would be prejudiced, the court finds that leave to amend should be granted pursuant to Rule 15(a). See Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, IT IS HEREBY ORDERED that Plaintiffs' October 22, 2007 motion to amend is GRANTED.
IT IS FURTHER ORDERED that Defendant's October 1, 2007 motion to dismiss is DENIED AS MOOT.