Opinion
Case No. 1:06-cv-00085 ALA (P).
May 9, 2008
ORDER
Mr. McClelland is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Before this Court are Defendants' motion to dismiss the complaint (Doc. No. 10), and Mr. McClelland's motion for leave to amend his complaint (Doc. No. 18). For the reasons set forth below, Mr. McClelland may file a first amended complaint, and Defendant's motion to dismiss is denied as moot.
I
On March 18, 2008, Defendants filed a motion to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on the grounds that Mr. McClelland failed to exhaust his administrative remedies and that Mr. McClelland failed to state a claim on which relief could be granted (Doc. No. 10). Mr. McClelland filed an opposition to the Defendants' motion on April 14, 2008, and Defendants replied to Mr. McClelland's opposition on April 23, 2008. On May 6, 2008, Mr. McClelland filed a motion for leave to amend his complaint (Doc. No. 18).
II
Pursuant to Rule 15(a)(1)(A), plaintiff has the right to amend his pleadings once "as a matter of course" before being served a "responsive pleading." Motions under Rule 12 are not "responsive pleadings." Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n. 3 (9th Cir. 2000).
Here, Defendants have not filed an answer. Instead, they filed a motion to dismiss the complaint under Rule 12. Therefore, Mr. McClelland has the right to amend his pleadings without leave of the Court. Mr. McClelland is informed that Local Rule 15-220 provides, in relevant part:
[E]very pleading to which an amendment or supplement is permitted . . . shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading. No pleading shall be deemed supplemented until this Rule has been complied with. All changed pleadings shall contain copies of all exhibits referred to in the changed pleading.
III
Because Mr. McClelland has informed the Court that he intends to amend his complaint, Defendants' motion to dismiss is denied without prejudice as moot.Accordingly, it is hereby ORDERED that:
1. Defendants' motion to dismiss (Doc. No. 10) is DENIED WITHOUT PREJUDICE.
2. Mr. McClelland's motion to amend his complaint (Doc. 18) is GRANTED because Mr. McClelland has the right to amend his complaint once before a responsive pleading is filed. Plaintiff shall file his first amended complaint on or before June 13, 2008.