Dorian Davis v. Flores et al

Filing 28

ORDER GRANTING Plaintiff's 27 Request to Amend the Complaint; ORDER DENYING Defendant's 23 Motion to Dismiss as Moot signed by District Judge Jeffrey T. Miller on 8/4/2009. ( Amended Complaint due by 9/8/2009)(Figueroa, O)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. E.G. FLORES; J. CASTRO; T. BILLINGS; A. HEDGPETH; R. MARTA, Defendants. On August 15, 2008, Plaintiff, an inmate currently incarcerated at Kern Valley State Prison in Delano, California and proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. 1983. (Doc. No. 1.) Defendants moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 23.) Along with his opposition, Plaintiff included a request for leave to file a First Amended Complaint to include additional factual allegations. (Doc. No. 27.) Under Federal Rule of Civil Procedure 15(a), "[a] party may amend its pleading once as a matter of course...before being served with a responsive pleading...." As Defendants have not yet filed a responsive pleading, Plaintiff may file a First Amended Complaint without leave of court. Thus, his request is GRANTED. If Plaintiff wishes to file a First Amended Complaint, he must do so no later -108cv1197 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DORIAN DAVIS aka WALI AL-TAQI, CDCR #K-78041, Plaintiff, Civil No. 08-cv-1197 JTM (JMA) ORDER: 1) GRANTING PLAINTIFF'S REQUEST TO AMEND COMPLAINT; and 2) DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT Doc. Nos. 23 and 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 than September 8, 2009. Because a First Amended Complaint would supercede the target of Defendants' pending motion, Defendants' motion to dismiss is DENIED without prejudice as moot. If Plaintiff does not file a First Amended Complaint by the date specified above, Defendants are free to re-file their motion. DATED: August 4, 2009 Hon. Jeffrey T. Miller United States District Judge -2- 08cv1197

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