Opinion
CASE NO. 3:19-cv-05980-RJB-JRC
02-28-2020
JOSHUA D. LAMBERT, Plaintiff, v. XLOMARA HUERTAS et al, Defendants.
REPORT AND RECOMMENDATION NOTED FOR: March 27, 2020
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura. Defendants Ray Hendrickson, Xlomara Heurtas, Natasha House, Rhana Kahn, State of Washington, and Western State Hospital ("WSH defendants") filed the pending motion to dismiss on December 30, 2019, asserting that plaintiff's original complaint failed to state a claim upon which relief could be granted. See Dkt. 24. After the motion to dismiss was filed, the Court granted plaintiff's motion to amend as a matter of course (Dkts. 30, 37,), and plaintiff's first amended complaint has been filed (Dkt. 38).
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). In response to plaintiff's motion to amend, the WSH defendants request that the Court consider the arguments raised in their motion to dismiss with respect to the first amended complaint. Dkt. 36 at 1-2. However, the WSH defendants' motion to dismiss attacks the original complaint, which is "non-existent" because plaintiff has filed his first amended complaint. Dkt. 38. Accordingly, the undersigned recommends that the WSH defendants' motion to dismiss (Dkt. 24) be denied as moot without prejudice.
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 March 20, 2020, as noted in the caption.
Dated this 28th day of February, 2020.
/s/_________
J. Richard Creatura
United States Magistrate Judge