Opinion
No. CIV S-07-0846 FCD JFM P.
May 27, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action was opened pursuant to a May 2, 2007 order severing plaintiff's claims from those of five other inmates who had filed one civil rights action. On July 10, 2007, pursuant to that order, plaintiff filed a document styled as an amended complaint raising only claims personal to him. On October 1, 2007, plaintiff filed a request for injunctive relief. On October 24, 2007, the court ordered the United States Marshal to request a waiver of service from four defendants named in the amended complaint. On January 2, 2008, defendants filed a motion to dismiss. By order filed February 7, 2008, plaintiff's request for an extension of time to file an opposition to the motion to dismiss was granted. On February 26, 2008 and March 12, 2008, plaintiff filed requests for an extension of time to file a second amended complaint.
Rule 15(a)(1)(A) provides that "[a] party may amend its pleading once as a matter of course: (A) before being served with a responsive pleading." Fed.R.Civ.P. 15(a)(1)(A). A motion to dismiss is not a "responsive pleading" within the meaning of Fed.R.Civ.P. 15. Miles v. Department of Army, 881 F.2d 777, 781 (9th Cir. 1989). Plaintiff is therefore entitled to amend his complaint. Plaintiff's amended complaint will be dismissed and plaintiff's May 12, 2008 second amended complaint will be deemed filed as of right. The court will screen the second amended complaint in a separate order. See 28 U.S.C. § 1915A. Defendants will not be required to respond to the second amended complaint until it has been screened by the court pursuant to 28 U.S.C. § 1915A. Defendants' motion to dismiss the amended complaint is mooted by this order and will therefore be denied.
As noted above, the original complaint in this action was dismissed with instructions to each named plaintiff to file an amended complaint and proceed separately on their own individual claims. Given those circumstances, the amended complaint filed in this action is the functional equivalent of an original complaint. For that reason, the court finds that, although this action is proceeding on a document styled an amended complaint, plaintiff has not lost the right to amend his complaint "once as a matter of course." Fed.R.Civ.P. 15(a)(1).
The principal purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful decision after a trial on the merits. See C. Wright A. Miller, 11 Federal Practice and Procedure, § 2947 (1973). In addition to demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary injunction, plaintiff must show a "fair chance of success on the merits" of his claim. Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982), quoting Benda v. Grand Lodge of International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1979). Implicit in this required showing is that the relief awarded is only temporary and there will be a full hearing on the merits of the claims raised in the injunction when the action is brought to trial. Plaintiff's motion for injunctive relief will be denied without prejudice to its renewal, as appropriate, following screening of the second amended complaint.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's amended complaint is dismissed;
2. Plaintiff's February 26, 2008 and March 12, 2008 requests for extension of time to file a second amended complaint are granted;
3. Plaintiff's May 12, 2008 second amended complaint is deemed timely filed as of right;
4. Defendants are not required to respond to the second amended complaint until further order of court;
5. Defendants' January 2, 2008 motion to dismiss is denied as moot;
6. Plaintiff's October 1, 2007 request for injunctive relief is denied without prejudice.