Opinion
No. CIV S-06-2030-MCE-CMK-P.
August 24, 2007
ORDER
Plaintiff, a state prisoner proceeding pro se and in form pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. On June 27, 2007, plaintiff submitted a second amended complaint (Doc. 26).
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading" . . . once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). Once a responsive pleading is filed, a party's pleadings may only be amended upon leave of court or stipulation of all the parties. See id. A motion to dismiss pursuant to Rule 12(b)(6) is not a responsive pleading. See Breier v. Northern Cal. Bowling Proprietors' Ass'n, 316 F.2d 787, 789 (9th Cir. 1963).
Because plaintiff has already filed an amended complaint (Doc. 9), plaintiff may not amend the complaint unless leave of court to do so is first given. Plaintiff has filed neither a motion to amend nor a stipulation to amend the complaint signed by all parties. Plaintiff's amended complaint will, therefore, be stricken, and this action will proceed on the existing pleadings. To the extent plaintiff had filed a motion for leave to amend, the court would have denied that motion because it appears plaintiff is attempting to submit evidence which can be accomplished by other means.
The motion to dismiss (Doc. 20) will be addressed separately.
Accordingly, IT IS HEREBY ORDERED that plaintiff's second amended complaint (Doc. 26), submitted on June 27, 2007, is stricken.