Opinion
Case No. 5:07cv114/RS/EMT.
August 31, 2007
ORDER
This cause is before the court upon Plaintiff's Motion to Amend Complaint (Doc. 6). Plaintiff also filed an Amended Complaint (received by the clerk on June 21, 2007). Leave to proceed in forma pauperis has been granted (see Doc. 5) but the initial partial filing fee remains unpaid (see Doc. 13 (granting Plaintiff an extension of time to pay the initial partial filing fee); Doc. 17 (noting that Docs. 13 and 14 were returned undelivered); Docket Entry 18 (explaining that the clerk resent Docs. 13 and 14 to Plaintiff)).
Northern District of Florida Local Rule 15.1 provides that "[w]hen leave is sought to amend a pleading pursuant to a motion, the motion and the proposed amended pleading shall each be filed and docketed separately. The proposed amended pleading shall not take effect unless and until the motion to amend is granted." Here, Plaintiff's amended complaint has not been docketed by the clerk; therefore, the clerk shall be directed to docket his amended complaint.
Rule 15(a) of the Federal Rules of Civil Procedure provides that a "party may amend the party's pleadings once as a matter of course at anytime before a responsive pleading is served. . . ." Defendant has not been served with Plaintiff's complaint because, as the matter of the initial partial filing fee has not been resolved, this court has yet to undertake its statutory duty to screen the complaint, as required by 28 U.S.C. § 1915(e)(2). Therefore, because no responsive pleading has been served and Plaintiff has not previously sought to amend his complaint, Plaintiff is entitled to amend his complaint as a matter of course, and his motion shall be granted. After the matter of the initial partial filing fee is resolved, the court will screen Plaintiff's amended complaint pursuant to § 1915(e)(2).
Accordingly, it is ORDERED:
1. The clerk is directed to docket Plaintiff's Amended Complaint (received by the clerk on June 21, 2007).
2. Plaintiff's Motion to Amend Complaint (Doc. 6) is GRANTED.